TREATISE 


ON 


THE  LAW  OF  WAR, 


A 
TREATISE 


ON 


THE  LAW  OF  WAR. 


Translated  from  the  original  Latin  of 

CORNELIUS  VAN  BYNKERSHOEK. 


BEING 

THE  FIRST  BOOK 

OF  HIS 


JURIS  PUBLIC!. 


WITH  NOTES, 
BY  PETER  STEPHEN  DU  PONCEAU, 

Counsellor  at  Law  in  the  Supreme  Court  of  the  United  Stitcs 
of  America. 


Ne  fortior  omnia  possit. — Ovi  D. 


PHILADELPHIA: 

Published  by  Farrand  &  Nicholas;  also,  by  Farrand,  Mallory  k  Co.,  Bostor 

P.  H.  Nicklin  &  Co.,  Baltimore;  D.  Farrand  &  Green,  Albany; 

Lyman,  Mallory  k  Co.,  Portland;  and  Swift  fee 

Chipman,  Middlebury,  (Vt.) 

Fry  and  Kammerer,  Printers. 

1810. 


^    OS.         .* 


District  of  Penns}'lvania,  to  wit: 

******       BE  IT  REMEMBERED,  That  on  the  eighth  day  of 
*  Seal.  *   October,  in  the  thirty  fifth  year  of  the  Independence  of 
******   the  Unitetl  States  of  America,  A.  D.  1810,  Farrand  and 
Nicholas,   of  the  said  district,  have  deposited  in  this  of- 
fice the  title  of  a  book,'  the  right  whereof  they  claim  as  proprietors 
in  the  words  following,  to  wit: 

"  A  Treatise  on  the  Law  of  War.  Translated  from  the  original 
Latin  of  Cornelius  Van  Bynkershoek.  Being  the  first  book  of 
his  Qusestiones  Juris  Public!.  With  Notes,  by  Peter  Stephen 
Du  Ponceau,  Counsellor  at  Law  in  the  Supreme  Court  of  the 

United  States  of  America.    Ne  fortior  omnia  possit. — 

Ovid  " 

In  conformity  to  the  act  of  the  congress  of  the  United  States, 
intituled,  "An  act  for  the  encouragement  of  learning,  by  securing  the 
copies  of  maps,  charts  and  books,  to  the  authors  and  proprietors  of 
such  copies,  during  the  times  therein  mentioned."  And  also  to  the 
act,  entitled  "An  act  supplementary  to  an  act,  entitled  "  An  act  for 
the  encouragement  of  learning,  by  securing  the  copies  of  maps, 
charts,  and  books,  to  the  authors  and  proprietors  of  such  copies, 
during  the  time  therein  mentioned,"  and  extending  the  benefits 
thereof  to  the  arts  of  designing,  engraving,  and  etching  historical  and 
other  prints." 

D.  CALDWELL, 
Clerk  of  the  District  of  Pennsylvania. 


JX 

4510 


TABLE  OF  CONTENTS. 

Page 

PREFACE .'....  f .  .   .  .   .  v 

An  account  of  the  life  and  writings  of  the  author     .     .     .    xiii 

A  brief  alphabetical  notice  of  the  several  writers  and  works 
on  the  civil  law  and  the  law  of  nations,  not  generally 
known,  and  which  are  quoted  or  referred  to  in  this  book  xxiii 

A  table  of  American  and  English  cases,  cited  or  referred  to 
in  the  notes  xxxi 

Table  of  reference,  to  enable  the  reader  to  find  the  pas- 
sages quoted  from  the  text  of  the  civil  law  .  .  .  xxxiii 

CHAPTER  I. 
Of  War  in  general 1 

CHAPTER  II. 
Of  a  declaration  of  war .      6 

CHAPTER  III. 
Of  War,  considered  as  between  enemies •       18 

CHAPTER  IV. 
Of  the  capture  of  movable  property,  and  particularly  of  ships    27 

CHAPTER  V. 
Of  the  recapture  of  movable  property 36 

CHAPTER  VI, 

Of  the  possession  of  immovables  taken  in  war      ....     45 

CHAPTER  VII. 
Of  the  confiscation  of  the  enemy's  actions  and  credits     .     .     51 

CHAPTER  VIII. 

Of  hostilities  in  a  neutral  port  or  territory     ......    58 

CHAPTER  IX. 
Of  Neutrality 66 

CHAPTER  X. 
Of  Contraband 74 

CHAPTER  XI. 

Of  Trade  with  blockaded  and  besieged  places 82 

fa 


'""i.  •     ' "•"£"  L* 

POLITICAL  SCIENCE 


iv  TABLE  OF  CONTENTS. 

Page 

CHAPTER  XII. 
Of  the  mixture  of  lawful  with  contraband  goods   ....     93 

CHAPTER  XIII. 
Of  neutral  goods  found  on  board  of  the  ships  of  enemies    .    100 

CHAPTER  XIV. 
Of  enemy's  goods  found  on  board  of  neutral  ships     .     .     .    106 

CHAPTER  XV. 

Of  the  right  of  Postliminy  on  neutral  territory    .     .     .     .     113 

CHAPTER  XVI. 

Of  the  right  of  Postliminy,  as  applied  to  cities  and  states       122 

CHAPTER  XVII. 
Of  Pirates 12? 

CHAPTER  XVIII. 
Of  Privateers 139 

CHAPTER  XIX. 
Of  the  responsibility  of  owners  of  privateers 147 

CHAPTER  XX. 
Of  captures  made  by  vessels  not  commissioned    ....    155 

CHAPTER  XXI. 
Of  insuring  enemy's  property 163 

CHAPTER  XXII. 

Of  enlisting  men  in  foreign  countries,  and  incidentally,  of 
expatriation        174 

CHAPTER  XXIII. 

Of  the  right  of  the  several  provinces  of  the  United  Nether- 
lands, to  declare  and  make  war 181 

CHAPTER  XXIV. 
Of  Reprisals 182 

CHAPTER  XXV. 
Miscellaneous  maxims  and  observations 1 90 

Table  of  titles  contained  in  the  index 201 

Index 20? 


PREFACE. 


1  HE  following  translation  was  made  several  years  ago 
for  my  own  private  use,  and  without  any  intention  of 
ever  publishing  it.  But  Mr.  Hall,  the  editor  of  the  Ame- 
rican Law  Journal,  having  expressed  a  wish  to  insert  it 
in  that  valuable  periodical  work,  I  freely  consented  to  it, 
having  no  other  idea  at  the  time  but  that  it  should  appear 
there  as  an  anonymous  performance.  The  manuscript 
was  accordingly  handed  over  to  the  printers  of  the  Jour- 
nal, and  the  first  ten  chapters  were  printed  off,  without 
undergoing  any  other  corrections  but  such  as  occurred 
in  revising  the  proof  sheets,  to  which  I  subjoined  a  few 
short  notes  as  I  went  along. 

But  while  I  was  engaged  in  that  occupation,  I  felt  my 
ancient  attachment  to  a  favourite  author  revive;  the  sub- 
ject grew  upon  me;  I  gave  an  attentive  revisal  to  the  re- 
mainder of  the  manuscript,  and  added  to  it  a  more  copi- 
ous body  of  notes;  and  I  now,  with  diffidence,  venture 
to  present  the  result  of  my  labours  in  my  name  to  my 
brethren  of  the  American  bar.  It  is,  according  to  its  first 
destination,  published  in  and  for  the  American  Law 
Journal,  and  will  be  delivered  to  its  subscribers  as  the 
third  number  of  the  third  volume  of  that  publication; 
but  a  sufficient  number  of  copies  will  also  be  struck 


vi  PREFACE. 

off  for  such  as  may  wish  to  possess  it  as  a  separate 
work. 

I  need  not  explain  to  those  who  are  conversant  with 
the  works  of  my  author,  that  his  Qutestiones  Juris  Publici 
are  divided  into  two  parts,  entirely  distinct  from  and 
unconnected  with  each  other,  otherwise  than  by  being 
published  together  under  one  title,  and  by  their  general 
relation  to  subjects  of  public  law.  The  first  part,  De  Re- 
bus Bellicis,  treats  exclusively  of  the  law  of  war,  and 
forms  of  itself  a  complete  treatise  on  that  particular  sub- 
ject. I  have  thought  it  best,  therefore,  to  translate  and 
publish  it  separately,  under  its  appropriate  title,  A  Trea- 
tise on  the  Law  of  War. 

To  expatiate  on  the  merits  of  this  excellent  work 
would  be  useless.  It  is  known  and  admired  wherever 
the  law  of  nations  is  acknowledged  to  have  a  binding 
force.  Its  authority  is  confessed  in  the  cabinets  of  princes, 
as  well  as  in  the  halls  of  courts  of  justice:  to  be  unac- 
quainted with  it,  is  a  disgrace  to  the  lawyer  and  to  the 
statesman.  It  ranks  its  author  among  the  great  masters 
of  the  law  of  nature  and  nations,  with  Grotius,  Puffen- 
dorffl  Wolffius,  and  Mattel.  His  range  is  not  indeed  so 
extensive  as  that  of  his  illustrious  colleagues;  but  he  has 
more  profoundly  investigated  and  more  copiously  dis- 
cussed than  any  of  them  the  particular  branch  which  he 
assigned  to  himself. 

It  is  extraordinary  that  a  treatise,  the  merit  of  which 
is  so  generally  acknowledged,  has  not  as  yet  been  trans- 
lated into  any  of  die  modern  languages  (the  Low  Dutch 
excepted),  and  that  the  English,  particularly,  who  pro- 
fess to  admire  it  so  much,  have  not  favoured  the  world 
with  a  good  translation  of  it  into  our  common  idiom. 
For  we  cannot  consider  as  such  the  incorrect  and  in- 
complete version  which  in  the  year  1759  was,  by  the  help 


PREFACE.  vii 

of  some  interpolations,  published  by  Mr.  Richard  Lee? 
as  an  original  work,  under  the  title  of  A  Treatise  of 
Captures  in  War,  a  second  edition  whereof  appeared 
at  London  in  1803,  in  the  preface  to  which  the  book  is 
for  the  first  time  acknowledged  to  be  an  enlarged  trans- 
lation of  the  present  work.  The  insufficiency  of  that  per- 
formance to  supply  the  place  of  our  author's  text  is  every 
where  admitted;  and  the  friends  of  science  in  this  country 
have  long  expected  that  some  of  the  learned  civilians  of 
Great  Britain,  a  Robinson,  a  Ward,  or  a  Brown,  would 
present  the  world  with  an  English  translation  of  the  trea- 
tise De  Rebus  Bellicis,  executed  in  a  manner  worthy  of  its 
author.  But  this  fond  hope  has  unfortunately  been  disap- 
pointed. 

No  person  has  wished  more  anxiously  than  myself  to 
see  this  translation  performed  by  some  one  of  the  able 
professors  whom  I  have  just  named,  and  who  are  so  ca- 
pable of  doing  it  complete  justice.  Then  my  favourite 
author  would  have  appeared  in  an  English  dress,  with 
all  the  advantages  which  brilliant  talents,  combined 
with  a  profound  knowledge  of  the  science  of  which  he 
treats,  could  have  given  him.  The  translation  which  I 
offer  to  the  public  cannot  boast  such  high  advantages; 
it  claims  no  other  merit  but  that  of  correctness,  the 
only  one  which  a  translator  cannot  dispense  with.  To 
deserve  this  humble  praise  has  been  the  object  of  mv 
constant  efforts.  I  have  endeavoured  to  discover  the 
precise  English  expressions  which  my  author  would 
have  used,  if  he  had  written  in  our  language.  If  some- 
times I  have  shortened  his  long  Ciceronian  periods, 
and  divided  them  into  more  convenient  paragraphs;  if 
sometimes,  also,  I  have  connected  his  phrases  in  a  man- 
ner more  suited,  as  I  thought,  to  the  idiom  in  which  I 
wrote,  I  believe  that  I  have  done  it  without  injury  to  the 


viii  PREFACE. 

sense.  Where  my  author  narrates,  I  have  endeavoured 
to  state  with  fidelity  the  facts  and  events  that  he  relates; 
where  he  argues,  to  convey  the  full  force  of  his  able  and 
luminous  reasoning,  and  I  was  sensible  that  it  could  not 
be  done  better,  than  by  keeping  as  close  to  the  text  as 
possible.  I  have  but  in  few  instances  wandered  from  this 
strict  plan,  and  only  where  our  author  treats  of  local  sub- 
jects, of  little  or  no  interest  to  the  American  reader.  Of 
the  few  other  liberties,  which  I  have  thought  necessary 
to  take  in  the  course  of  this  work,  it  is  proper  that  I 
should  give  an  account  in  this  place. 

I  have  shortened  the  titles  of  the  several  chapters, 
which  in  the  original  are  presented  in  the  shape  of  que- 
ries, to  suit  the  modest  title  of  Questions,  which  is  pre- 
fixed to  the  whole  work.  Considering  this  first  part, 
as  justly  entitled  to  be  considered  a  complete  and  regular 
treatise  on  the  law  of  war,  1  have  thought  it  my  duty  to 
present  it  as  such  to  my  readers,  and  to  head  its  several 
divisions  accordingly. 

For  the  same  reason,  I  have  entitled  the  twenty  fifth 
chapter,  which  in  the  original  bears  the  title  of  "  Various 
Small  Questions,"  (Varia;  Qutfstiuncul(s}\  MISCELLA- 
NEOUS MAXIMS  AND  OBSERVATIONS,  for  such  they 
will  appear  to  be;  and  I  have  headed  each  of  the  sections 
into  which  that  chapter  is  divided,  with  the  result  of  the 
observations  that  it  contains,  in  the  form  of  an  axiom  or 
aphorism,  so  that  the  reader  may  see  at  once  the  pro- 
position which  the  author  means  to  maintain  or  to  illus- 
trate in  each  of  those  subdivisions. 

I  have  omitted  the  whole  of  the  twenty  third  chapter 
and  some  parts  of  a  few  others,  which  are  pointed  out  in 
notes  in  their  several  places,  as  treating  of  subjects  which 
are  local  in  their  nature  and  application,  and  consequent- 
ly, are  neither  useful  nor  interesting  to  us.  I  have,  for  the- 


PREFACE.  ix 

same  reason,  left  out  a  great  number  of  the  references, 
which  our  author  frequently  makes  to  the  Dutch  statute 
books,  and  to  some  other  national  works,  little  or  not  at 
all  known  in  this  country.  I  have,  however,  preserved  a 
few  to  some  of  the  most  noted  among  them,  and  par- 
ticularly to  Aitzema,  whose  Chronicle  I  consider  as  an 
excellent  compilation  of  historical  facts  and  documents, 
of  which  I  have  endeavoured  to  give  a  character  in  a  note 
to  page  15. 

I  have  thrown  into  notes,  in  the  fifteen  last  chapters, 
the  numerous  references  which  abound  in  the  body  of 
the  original  work.  The  first  ten  chapters  being  in  the 
press,  as  I  have  already  mentioned,  when  I  began  to  re- 
vise this  translation,  I  was  prevented  from  doing  the 
same  with  respect  to  them  by  the  fear  of  giving  to  the 
printers  too  much  additional  trouble. 

With  regard  to  the  notes  which  I  have  subjoined  to 
the  body  of  the  work,  and  which,  to  distinguish  them 
from  those  of  the  author,  are  marked  71,  they  are 
principally  intended  to  elucidate  and  explain  the  text. 
Our  author  often  slightly  refers  to  facts  which  were  well 
known,  and  some  of  them  even  remembered  in  his  dav; 
frequently,  also,  he  alludes  to  particular  texts  of  the 
civil  law,  and  to  the  opinions  of  writers  whose  works 
were  familiar  to  the  civilians  of  Europe  and  of  his  coun- 
try, but  are  little  read  among  us.  In  every  such  instance, 
whenever  it  has  been  in  my  power,  I  have  presented  the 
reader,  in  a  note,  with  the  text  or  passage  referred  to;  and 
where  that  could  not  conveniently  be  done,  I  have  given 
such  explanations  as  I  thought  would  best  enable  him 
clearly  to  understand  the  scope  and  meaning  of  the  ob- 
servations or  arguments  of  our  author. 

As  I  progressed  in  the  work,  I  have  added  some 
other  notes,  which  exhibit  a  comparative  view  of  the 


x  PREFACE. 

principles  and  practice  of  the  different  states  of  America 
and  Europe  on  various  interesting  points.  In  a  few  in- 
stances I  have  presumed  to  advance  my  own  opinions, 
and  even  in  some  of  them  to  differ  from  my  author  him- 
self; but  I  have  done  it,  I  am  sure,  in  the  spirit,  and,  I 
hope,  in  the  manner  pointed  out  by  the  great  orator, 
queer  ens  omnia,  dubitans  plerumque,  et  mihi  diffidens.* 

I  have  thought  that  an  account  of  the  life  and  writings 
of  Bynkershoek  would  not  be  unacceptable  to  the  reader, 
and  therefore  it  will  be  found  immediately  after  this 
preface.  I  have  added  to  it  a  brief  alphabetical  notice  of 
those  writers  on  the  civil  law  or  the  law  of  nations,  whose 
works  are  not  generally  known,  and  are  quoted  or  refer- 
red to  in  this  book.  A  list  of  the  American  and  English 
cases  cited  in  the  notes,  and  a  table  of  reference  to  the 
books  and  titles  of  the  quotations  from  the  text  of  the 
civil  law,  which  occur  in  the  course  of  the  original  work, 
are  also  subjoined.  I  regret  that  some  errors  of  inadver- 
tence have  escaped  my  attention,  particularly  in  the  notes, 
which  I  acknowledge,  were  written  with  some  degree  of 
haste,  though  they  are  the  result  of  much  previous  study 
and  reflection.  Such  of  those  errors  as  I  have  discovered 
are  noticed  in  an  errata,  at  the  end  of  the  book.f 

Being  about  to  commit  this  work  to  the  candour  and 
indulgence  of  the  public,  I  have  thought  it  necessary  to 
premise  these  few  observations.  It  has  long  been,  as  I 
have  already  observed,  an  anxious  wish  of  the  American 
jurists  to  see  this  celebrated  treatise  correctly  translated 
into  our  language,  and  published  in  a  portable  form.  It 
is  very  difficult  to  procure  in  this  country  a  copy  of  the 

*  Cic.  acad.  quaest.  1. 

t  To  which  add  the  following,  which  was  not  noticed  at  the 
time:  page  155,  line  1,  of  the  text,  dele  "whether." 


PREFACE.  xi 

original,  which  is.  only  to  be  found  in  a  few  of  our  libra- 
ries. Nor  can  it  be  obtained  from  Europe,  without  pur- 
chasing at  the  same  time  two  folio  volumes,  which  con- 
tain a  great  deal  of  matter  of  little  interest  to  those  who 
do  not  make  the  civil  law  the  object  of  their  particular 
study.  With  the  greatest  diffidence,  therefore,  I  submit 
this  feeble  attempt  to  the  candid  and  enlightened  judg- 
ment of  my  professional  brethren;  if  it  shall  be  thought 
deserving  of  their  approbation,  I  shall  consider  it  as  an 
ample  and  honourable  reward  of  my  labours,  otherwise 
I  shall  endeavour  to  profit  by  their  censure. 

At  the  present  moment,  when  the  fate  of  Holland  cre- 
ates a  lively  interest  in  every  feeling  mind,  the  public 
will  be  disposed  to  receive  with  peculiar  indulgence,  a 
work  which  recals  to  our  memory  the  brilliant  epochs  of 
that  celebrated  republic,  once  so  famed  in  arts  as  well  as 
in  arms.  She  has  proved  to  the  world,  that  the  republi- 
can spirit  of  commerce,  and  the  honourable  pursuits  of 
industrious  enterprise  are  not  incompatible  with  any  of 
those  more  brilliant  attainments  by  which  nations  as  well 
as  individuals  are  raised  to  celebrity.  Since  her  separa- 
tion from  the  Spanish  empire  she  has  produced  more 
great  men,  and  achieved  more  great  deeds,  than  all  the 
remainder  of  that  once  immense  and  powerful  monarchy. 

Holland  is  no  more,  but  the  remembrance  of  her  past 
glory  can  never  die.  The  admirers  of  military  exploits 
will  with  pleasure  and  pride  dwell  on  the  achievements  of 
her  Maurice,  her  De  Ruyters,  and  her  Van  Tromps. 
The  statesman  will  still  guide  his  political  bark  by  the 
lights  which  her  De  Witts,  her  Van  Beuningens,  and  her 
Fagels  have  supplied.  The  astronomer,  the  philosopher, 
will  explore  the  secrets  of  nature  and  the  heavens,  with 
her  ''sGravesandcs  and  her  Huygens.  The  physician  will 
improve  his  theory  and  his  practice  by  the  discoveries 

fb 


xii  PREFACE. 

of  her  Boerhaaves  and  her  Van  Swietens.  And  the  stu- 
dent, who  delights  in  investigating  the  principles  of 
that  law  of  nations,  so  much  talked  of  and  so  little 
practised,  will  ever  revere  the  hallowed  soil  which 
gave  birth  to  such  illustrious  men  as  Grotius  and  our 
BYNKERSHOEK. 

His  saltern  accumulem  donis  &  fungar  inani 
Munere. 

Philadelphia,  October,  1810. 


AN  ACCOUNT 


OF  THE 


LIFE  AND  WRITINGS 


THE  AUTHOR. 


CORNELIUS  VAN  BYNKERSHOEK  was  bom  the 

29th  of  May  1673,  at  Middleburgh,  the  capital  of  the  province 
of  Zealand,  where  his  father  was  a  respectable  merchant.  He 
received  his  education  at  the  university  of  Franeker  in  Fries* 
land,  and  his  juvenile  exercises  while  there,  drew  upon  him 
the  attention  of  the  celebrated  professor  Huberus,*  who  in  one 
of  his  elaborate  dissertations,  calls  him  eruditissimus  juvenis 
CORNELIUS  BYNKERSHOEK.J  On  leaving  the  university,  he 
settled  at  the  Hague,  where  he  exercised  with  great  applause 
the  profession  of  an  advocate,  and  published  from  time  to  time 
ingenious  and  learned  dissertations  on  various  subjects  of  the 
civil,  and  of  his  own  municipal  law.  In  the  year  1702,  he  pub- 
lished his  excellent  dissertation  De  Dominio  Mans,  and  the 
next  year  was  appointed  a  judge  of  the  Supreme  Court  of 
Holland,  Zealand,  and  West  Friesland,  which  sat  at  the  Hague. 
In  the  year  1721,  he  published  his  learned  treatise  Deforo  Le- 
gatorum,  and  three  years  afterwards,  on  the  26th  of  May  1724, 
was  appointed  president  of  the  respectable  court,  of  which  he 
already  was  a  member.  He  was  now  fifty  one  years  of  age.  His 

*  Well  known  in  this  country,  by  his  dissertation  De  Confictu  Legum, 
part  of  which  has  been  translated  into  English,  and  published  by  Mr.  Dallas, 
in  a  note  to  the  case  of  Emory  v.  Greenough,  in  the  third  volume  of  his  Re- 
ports, page  370. 

f  Huber.  Ettnomia  Pomona,  ad  1.  Lecta,  D.  de  reb.  creci 


xiv  ACCOUNT  OF  THE  AUTHOR. 


celebrated  ^{cesticnes  juris  pubtici,  are  among  the  last  works 
that  he  produced,  as  they  did  not  appear  until  the  year  1737, 
when  he  was  sixty  four  years  old.  He  died  of  a  dropsy  in  the 
chest,  on  the  16th  of  April  1743,  in  the  seventieth  year  of  his 
age.  He  was  twice  married.  By  his  second  wife  he  had  no  chil- 
dren, but  left  six  daughters  by  his  first  wife. 

His  works  consist  chiefly  of  dissertations  andtreatises  (which 
he  modestly  calls  questions^  on  various  subjects  of  the  law  of 
nations,  and  of  the  civil  law,  combined  in  some  instances  with 
the  municipal  regulations  of  his  own  country.  They  were  pub- 
lished separately,  in  his  lifetime,  except  the  Qiicestiones  juris 
privati,  which  appeared  only  after  his  death.  These  are  only  a 
part  of  a  larger  work,  which  he  did  not  live  to  finish.  He  had 
however  prepared  the  four  first  books  for  the  press,  when  death 
put  a  period  to  his  labours.  He  had  not  even  time  to  write  more 
than  the  first  paragraph  of  a  preface,  with  which  he  intended 
to  usher  that  work  into  the  world,  and  in  which  he  appears  fully 
sensible  of  his  approaching  end. 

Eighteen  years  after  his  death,  his  scattered  writings  were 
collected  together  by  the  learned  Vicat,*  professor  of  juris- 
prudence in  the  college  of  Lausanne  in  Switzerland,  and  pub- 
lishtd  in  two  folio  volumes  at  Geneva,  in  the  year  1761.  This 
edition  is  the  only  one,  that  we  know  of,  of  all  the  works  of 
our  author,  though  we  are  informed  that  some  of  his  treatises 
have  gone  through  several  editions  in  his  own  country.  The 
Baron  Von  Ompteda\  notices  a  second  edition  of  the  ^ticestiones 
juris  pJtblicii'L.eydcn  1752,  4to.  But  this,  the  best  and  most  com- 
plete monument  of  his  fame,  was  published  in  a  foreign  land. 

This  edition  is  remarkable  for  its  beauty  and  correctness, 
and  is  adorned  with  an  elegant  preface  by  the  learned  editor, 
and  an  account  of  the  author's  life  and  writings,  from  which 
we  have  in  part  gathered  the  information  which  we  now  com- 
municate to  the  American  reader. 

*  M.  Vicat  is  the  author  of  an  esteemed  treatise  on  natural  hi\v,  entitled: 
Traite  du  Drnit  N.:tnrel  15*  tie  f  application  de  ses  principts  au  Droit  Civil  fcT 
nu  Dr<,it  dts  Gens.  Lausanne,  1T82,  4  voJs  8vn.  Baron  Von  Ompteda  calls  V- 
a  very  urefut  bunk.  LUu-r  dc-s  Vcclkcrr.  p.  389. 

t  Litter  atur  drs  Vcclkerrechts.  p.  420. 


ACCOUNT  OF  THE  AUTHOR.        Xv 

We  shall  here  give  a  brief  notice  of  the  several  works  of 
our  author,  which  are  contained  in  the  collection  of  professor 
Vicat,  although  but  few  of  them  can  be  of  any  practical  use  in 
this  country,  yet  we  believe  that  a  general  idea  of  the  whole  will 
not  be  thought  altogether  uninteresting. 

I.  The  first  volume  contains: 

1.  Observations  juris  Romani^  in  eight  books,  in  which  a 
variety  of  curious  points,  relating  to  the  ancient  Roman  juris- 
prudence, are  ably  discussed,  several  of  which  are  interesting  in 
an  historical  point  of  view,  as  elucidating  through  the  medium 
of  their  laws,  the  manners  and  customsof  that  once  great  people. 
Among  those,  we  notice  the  first  chapter  of  the  first  book,  in 
which  the  terrible  partis  secanto  of  the  law  of  the  twelve  tables 
is  ingeniously  and  plausibly  maintained  to  have  meant  no  more 
than  that  the  insolvent  debtor  should  be  sold  in  the  public  mar- 
ket as  a  slave,  and  the  proceeds  of  the  sale  distributed  among 
his  creditors.  The  14th  chapter  of  the  third  book  discusses 
the  question,  how  far  and  in  what  cases  the  military  force 
could  among  the  Romans  be  called  in  to  the  aid  of  the  judicial 
authority.  In  the  4th  book,  chap.  13,  the  author  comments  on 
the   19th  law  of  the  digest  De  ritu  nuptiarumy  by  which  a  fa- 
ther was  obliged  to  give  his  daughter  in  marriage  with  a  com- 
petent portion,  if  a  suitable  match  offered;  and  if  he  refused, 
might  be  compelled  to  it  by  the  magistrate.  Various  other  sub- 
jects of  an  equally  interesting  nature  to  the  scientific  lawyer, 
are  examined  and  discussed  in  the  course  of  that  work;  of  which 
we  think  it  sufficient  to  have  instanced  a  few,  to  give  an  idea 
of  the  general  scope  and  object  of  the  whole. 

2.  Opuscula  varii  argumenti.  This  work  like  the  former, 
consists  of  dissertations  on  various  subjects  of  the  Roman  law. 
They  are  six  in  number,  the  most  interesting  of  which  are  the 
first,  on  the  second  law  of  the  digest  De  origine  juris,  the  third 
on  the  right  which  fathers  had  among  the  ancient  Romans, 
of  killing,  selling,  or  exposing  their  children,  and  the  fourth 
on  the  Roman  laws,  respecting  foreign  modes  of  worship. 
This  last  is  replete  with  curious  information,  particularly  with 
regard  to  the  law  which  prevailed  on  that  important  subject, 
in  the  first  ages  of  Christianity. 

3.  This  volume  concludes  with  an  answer  to  his  learned 


xvi  ACCOUNT  OF  THE  AUTHOR. 

cotemporary  Gerard  Noodt,  who  had  controverted  some  of  the 
opinions  which  he  had  delivered  in  his  above  mentioned  dis- 
sertation, on  the  power  which  fathers  had  at  Rome  over  their 
children. 

II.  The  contents  of  the  second  volume  are  as  follow: 

1.  Opera  Minora,  consisting  of  six  dissertations  on  various 
subjects,  none  of  which  will  be  thought  very  interesting  in 
this  country,  except  the  5th,  De  Dominio  Marts,  and  the  6th, 
De  foro  legatorum.  These,  indeed,  had  he  never  written  any 
thing  else,  would  have  been  sufficient  to  establish  our  author's 
reputation  as  a  lawyer,  and  a  publicist.  Every  one  who  has  read 
and  understood,  and  of  course  admired  them,  cannot  help  find- 
ing fault  with  the  excessive  modesty  which  induced  him  to 
publish  them  under  the  inappropriate  title  of  opera  minora.  The 
learned  world  has  long  classed  them  among  the  best  works 
that  have  ever  appeared  on  those  generally  interesting  subjects. 

In  the  dissertation  De  Dominio  Marls,  our  author  considers 
the  long  agitated  question  of  the  Dominion  of  the  Sea,  in  a  libe- 
ral and  impartial  manner,  unbiassed  by  prejudice,  and  unsway- 
ed by  party  spirit.  He  calmly  and  dispassionately  considers  in 
what  cases  the  sea  is  capable  of  becoming  the  subject  of  sove- 
reignty or  exclusive  jurisdiction,  discusses  with  candor  the 
various  pretensions  which  different  states  have  set  up  from 
time  to  time  to  the  dominion  of  that  element,  or  of  considera- 
ble portions  thereof;  and  upon  the  whole,  his  conclusions  are 
such  as  reason  avows,  and  moderate  men  will  ever  be  disposed 
to  adopt. 

His  dissertation,  or  rather  treatise  Deforo  Legatorum  is  in 
every  body's  hands,  in  the  excellent  translation  which  Mr. 
Barbeyrac  made  of  it  into  the  French  language,  with  notes, 
in  which  he  has  displayed  his  usual  judgment  and  learning. 
That  translation  has  not  only  received  the  approbation,  but  the 
praise  of  our  author  himself,  with  whom  Mr.  Barbeyrac  was 
intimate.  We  shall  therefore  dispense  with  giving  a  more  par- 
ticular account  of  a  work  which  is  so  well  and  so  generally 
known.  To  name  it  is  sufficient  praise. 

2.  ^riastiones  juris  publici.  This  work  is  divided  into  two 
parts;  the  first  of  which,  entitled  De  Rebus  Bellicis  is  now  pre- 
sented in  an  English  translation  to  the  American  public,  under 


ACCOUNT  OF  THE  AUTHOR.  xvii 

its  appropriate  title  of  "  A  Treatise  on  the  Law  of  War;"  and 
a  more  complete  one  never  yet  has  been  written  on  this  inte- 
resting subject.  The  second  part  which  is  entitled  De  rebus  va- 
rn  argument!,  treats  of  various  subjects,  some  of  them  belong- 
ing to  the  law  of  nations,  and  others  to  the  constitution  and 
laws  of  the  United  Netherlands.  From  the  3d  to  the  12th 
chapter  inclusive,  our  author  treats  of  the  law  of  ambassadors, 
and  those  chapters  might  well  be  added  to  the  treatise  Deforo 
Legatorum,  with  the  subject  of  which  they  are  more  nearly 
connected  than  with  any  other.  In  the  seventh  chapter  he  ex- 
amines the  question,  whether  the  acts  of  a  minister  are  binding 
when  contrary  to  his  secret  instructions.  The  21st  chapter  treats 
of  the  salute  to  ships  of  war  at  sea,  and  seems  to  belong  more 
properly  to  the  dissertation  De  Dominio  Maris,  where  the  same 
subject  is  treated  of.  The  remainder  of  the  chapters,  twenty- 
five  in  number,  do  not  treat  of  any  subject  of  general  concern, 
and  the  whole  of  this  second  book  is  unconnected  with  the 
first,  which  is  best  exhibited  as  a  separate  and  independent 
treatise  on  the  Law  of  War. 

The  ^iicestiones  juris  publici  have  been  translated  into  the 
Low  Dutch  language  by  Matthias  Ruuscher,  in  the  year  1739. 
We  do  not  know  of  any  other  translation  of  them  into  any 
language  whatever,  except  that  of  the  first  book  by  Mr.  Lee 
into  English,  of  which  we  have  made  mention  in  the  preface. 

3.  ^ucestiones  juris  privati.  This  work,  which  was  to  have 
contained  one  hundred  chapters,  and  contains  only  forty-eight, 
was  left  incomplete,  as  we  have  already  mentioned,  by  the 
death  of  the  learned  author.  It  is  divided  into  four  books,  chiefly 
on  topics  of  the  civil  law  and  the  municipal  law  of  Holland.  The 
fourth  book  alone,  and  the  last  chapter  of  the  third,  may  be 
considered  as  interesting  to  the  American  jurist,  as  they  treat 
of  the  subject  of  insurance,  and  of  various  points  of  the  mari- 
time and  commercial  law.  This  work  closes  the  second  and 
last  volume. 

Our  author  also  wrote  two  other  considerable  works,  the 
one  entitled  Corpus  juris  Hollandice&  Zelandice,  and  the  other 
Observations  Tumultuaricc  or  hasty  notes,  being  memoranda 
which  he  took  from  day  to  day,  of  the  decisions  of  the  court 
in  which  he  sat  for  the  space  of  forty  years.  He  gave  directions 


xviii  ACCOUNT  OF  THE  AUTHOR. 

by  his  will,  to  his  executors,  that  those  works  should  not  be 
published;  and  they  strictly  complied  with  his  injunction. 
As  the  ancient  laws  of  Holland  have  been  subverted,  and  the 
Napoleon  code  introduced  in  their  place,  it  is  probable  that 
those  writings,  if  published,  would  not  be  found  of  any  great 
use  at  the  present  time. 

The  character  of  our  author's  works  has  long  been  esta- 
blished among  the  learned  of  Europe.  Heineccius,  who,  in  the 
year  1 723,  published  at  Leipsick,  an  edition  of  the  four  first 
books  of  the  Observationes  Juris  Romani,  calls  him  in  his  pre- 
face to  that  work,  "  a  man  of  consummate  learning  and  ability, 
possessing  a  sound  discriminating  mind,  and  an  extraordinary 
and  incredible  fund  of  legal  knowledge."*  Barbeyrac,  in  the 
preface  to  his  translation  of  the  treatise  De  foro  Legatorum, 
describes  him  as  one  of  that  superior  class  of  writers,  whose 
works  are  only  intended  for  men  of  learning,  and  who,  disdain- 
ing to  retail  the  opinions  of  others,  are  unwilling  to  say  any  thing 
which  has  been  observed  before,  and  endeavour,  as  much  as 
they  can,  to  exhibit  their  subject  in  some  new  point  of  view. 
"And  he  is  right;"  continues  he, "  to  have  taken  that  ground. 
One  who  possesses,  within  himself,  such  a  rich  fund  of  know- 
ledge, may  well  leave  it  to  others  to  borrow  and  repeat  what 
has  already  been  said."f 

In  England,  the  great  Lord  Mansfield  thought  him  worthy 
of  his  high  commendation  from  the  bench,  and  recommended 
the  work  which  we  have  translated,  to  the  attention  of  the  mem- 
bers of  the  English  bar.*  Since  that  time,  our  author's  works 
on  the  law  of  nations,  (but  particularly  that  which  is  now  be- 
fore us)  have  been  considered  as  standard  authorities,  in  Great 
Britain  as  well  as  in  the  United  States,  and  are  daily  quoted 

*  Admiratus  prxcipue  viri  eruditissimi  judiclum  acre,  ingenium  solers,  juris 
scientiam  inuaitatam  ac  denique  incredibilem. 

\  Nutre  auteur  est  un  de  ces  ecrivains  du  plus  haitt  vol,  qui  n'e'crivent  que  pour 
let  si'tmntu,  et  qui  nc  veuient  dire,  autant  qit'il  se  pent,  rien  que  du  nouvcau.  Et  il  a 
raisrtn  dc  ^e  mettre  sur  ce  pied  Id.  S^uaiid  on  est  si  riche  de  son  propre  fonds,  on 
Jait  ires  lien  de  laisser  d  d'autres  te  soin  d' '  emprunter  ce  qui  a  fte"  dejci  dit. 

*  Lord  Mansfield  spoke  extremely  well  of  Bynkcrshoci,  and  recommended 
especially,  as  well  worth  reading,  his  book  of  prizes,  $£ti<est  tones  juris  puoiici. 
2  Bur.  690.  in  margin. 


ACCOUNT  OF  THE  AUTHOR.  xix 

with  respect  by  the  bar,  and  relied  on  by  the  bench  as  the 
ground  of  their  decisions. 

Nor  have  our  American  statesmen  been  behindhand  in  com- 
mending the  merit  and  talents  of  this  eminent  writer.  Among 
them  none  has  bestowed  upon  him  more  correct  and  judicious 
praise,  than  the  great  character,  who  is  generally  understood  to 
be  the  author  of  the  excellent  Examination  of  the  British  doc- 
trine, -which  subjects  to  capture  a  neutral  trade,  not  open  in  time 
Qf  peace.  "  Bynkershoek"  says  he,  "  treats  the  subject  of  belli- 
gerent and  neutral  relations  with  more  attention,  and  explains  his 
ideas  with  more  precision  than  any  of  his  predecessors"^  How 
honourable  to  our  author  is  this  testimony,  when  we  consider, 
on  the  one  hand,  by  whom  it  is  given;  and  reflect  on  the  other, 
that  in  the  list  of  those  predecessors  whom  Mr.  Madison 
speaks  of,  are  found  the  celebrated  names  of  Puffendorff 'and 
of  Grotius! 

It  ought  to  be  a  great  inducement  to  the  study  of  the  law 
of  nations,  that  the  fame  of  those  who  devote  themselves  to  *      , 
that  important  branch  of  science,  extends  throughout  the  civi-  >  '  > 
lized  world;  while  the  most  excellent  works  on  mere  munici- 
pal jurisprudence,  are  hardly  known  or  spoken  of  out  of  the  y  ^ 
country  which  gave  them  birth.  Thus  the  writings  of  Grotius^ 
Bynkershoek,  and   Vattel,  are  read  and  admired  in  all  Ame-  |L.  <» 
rica  and  Europe,  while  the  very  names  of  Coke  and  Dumou- 
lin$  are  unknown  out  of  the  countries  where  the  particular 
systems  of  law  are  in  force,  which  they  took  so  much  pains  to 
methodize  and  elucidate.  Of  the  truth  of  this  observation,  a 
striking  instance  is  to  be  found  in  the  works  of  our  author,  who 
from  an  opinion  of  lord  Coke,  which  he  hud  found  quoted  and 
misrepresented  in  Dr.  Zoucti's  treatise  De  jure  inter  gentes^ 
conceiving  him  to  be  a  writer  entirely  ignorant  of  the  law  of  na- 
tions, treated  him  and  his  opinion  with  the  most  marked  con- 
tempt, calling  him  a  certain  Coke,  (Cocus  quidairi);  and  punning 
upon  his  name,  declared  that  he  could  not  concoct  his  opinions, 

f  Examination,  &c.  p.  22. 

\  Styled  the  prince  of  the  French  Law — -If  Prince  du  Droit  Francois.  Vie 
Jf  Dtrmoulrn,  par  Blondeau. 


xx  ACCOUNT  OF  THE  AUTHOR. 

nor  could  they  be  concocted  by  the  other  writers  on  the  law  of 
nations.* 

It  is  to  be  wished  that  this  passage  were  expunged  from 
our  author's  writings,  particularly  as  it  is,  perhaps,  the  only 
time  that  he  has  indulged  in  such  undignified  language;  and 
unfortunately  he  has  applied  it  to  a  man  whom  of  all  others 
he  would  have  admired,  had  his  studies  but  led  him  to  a  pe- 
rusal of  his  writings.  Little  did  he  know  that  that  Cocus  qui- 
dam,  whom  he  so  unjustly  despised,  was  one  whose  powerful 
mind  was  in  every  respect  congenial  to  his  own;  and  yet  he 
thought  him  unworthy  of  his  serious  notice,  while  he  paid  an 
unmerited  attention  to  the  works  and  opinions  of  such  an  in- 
ferior writer  as  Dr.  Zouch.  But  Zouch  had  written  on  the 
law  of  nations,  which  is  studied  every  where,  and  the  great  Coke 
had  only  elucidated  the  municipal  law  of  England,  which  is 
not  anywhere  an  object  of  attention,  except  in  those  countries 
where  it  is  the  established  system  of  jurisprudence. 

Unfortunately  many  of  the  works  that  have  appeared  on 
various  subjects  of  the  law  of  nations,  are  some  of  them  pole- 
mical writings,  written  in  the  heat  of  a  particular  controversy, 
and  on  the  spur  of  the  occasion;  and  others,  though  professing 
to  be  on  a  more  liberal  scale,  do  nevertheless  betray  the  par- 
tiality of  their  authors  to  the  system  adopted  by  the  country  in 
which  they  lived,  or  the  governments  under  whose  patronage 
they  wrote:  it  is  not  so  with  the  work  which  we  now  present  to 

*  — —  eamque  sententiam  tuetur  Cocus  Q_UIDAM  apud  Zoucheum,  Dejur. 
fee.  p.  2.  $  4.  Q.  19.  Sed  ego  tdm  dijficilis  stomachi  sum,  ut  earn  sententiam 
concoquere  non  possim,  neque  etiam  concoxit  Albericvs  Gentilis  neque  Zoucheus. 
Whitest,  jur.  pub.  \.  2.  c.  5.  The  opinion  that  our  author  could  not  assent  to  is 
that  which  is  expressed  by  Lord  Coke  in  4th  Inst.  153.  "  If  a  banished  mar. 
"  be  sent  as  ambassador  to  the  place  from  "whence  he  is  banished,  he  may  not  be 
"  detained  or  offended  there;  and  this  also  agreeth  luith  the  civil  law."  But  he 
had  not  •well  considered  that  opinion,  which  appears  a  very  sound  one,  and 
perfectly  agrees  with  his  own,  which  is,  that  such  a  minister  indeed,  may 
be  sent  out  of  the  country;  but  that  it  would  be  a  violation  of  good  faith,  to 
detain  and  punish  him  for  having  returned,  notwithstanding  his  sentence  ol 
banishment.  But  Byniershock  viewed  Lord  Coke  in  the  light  in  which  he  was 
exhibited  to  him  by  Zouch,  who  represented  that  great  man  as  learned,  in- 
deed, in  the  municipal  law  of  England,  but  ignorant  of  the  law  of  nations 
Juris  patrii  Cor.sultitsimut  noster  Eduardus  Cocus;  ejus  quod  cum  exteris  obti':f 
NONADEO  PEKITUS.  Zouch,  ubi  supra. 


ACCOUNT  OF  THE  AUTHOR.  Xxi 

the  public;  it  was  written  at  a  time  when  Europe  was  in  a  state 
of  profound  peace,  when  there  was  no  particular  point  warmly 
controverted  between  the  European  governments,  and  although 
the  author  was  a  Dutchman,  and  wrote  in  the  bosom  of  his 
native  country,  yet  we  see  that  he  did  not  even  adopt  the  fa- 
vorite doctrine,  for  which  his  government  had  been  struggling 
during  the  space  of  near  a  century,  that  free  ships  make  free 
goods;  so  that  although  many  among  us  may  not  agree  with  him 
on  this  particular  point,  still  we  cannot  withhold  from  him  the 
praise  of  a  strict  and  honest  impartiality;  and  upon  the  whole, 
very  few  propositions  will  be  found  in  the  present  treatise,  to 
which  all  moderate  and  impartial  men  will  not  give  their  cor- 
dial and  unfeigned  assent. 


A  BRIEF 


OF 


SEVERAL  WRITERS  AND  WORKS 


CIVIL  LAW  AND  TFIE  LAW  OF  NATIONS: 

Not  generally  known,  and  which  are  quoted  or  referred  to  in  this  book. 


(the  che-valier  de).  See  note,  p.  130. 

AITZEMA  (Leo  or  Leeuive).  See  note,  p.  15. 

BELLUS  (Petrinus),  a  Venetian  writer,  author  of  a  dissertation 
De  re  militari,  printed  at  Venice  in  1563,  4to.  It  is  to  be  found  also 
in  the  16th  vol.  of  Tractatus  Tractatuum^  sen  Oceanus  Juris;  an 
enormous  work,  being  a  collection  of  legal  tracts,  in  18  folio  vo- 
lumes, published  at  Venice  in  1584,  under  the  auspices  of  pope 
Gregory  the  13th.  It  contains  a  multitude  of  writings  on  the  civil 
and  canon  law,  by  jurists  of  the  middle  ages;  some  of  them  of  so 
early  a  period  as  the  sixth  century.  In  this  curious  collection,  there 
are  several  tracts  which  relate  to  subjects  of  the  law  of  nations. 

BoLAnos  (Juan  de  Hevia),  a  Sfianish  writer,  a  native  of  O-viedo,  in 
the  province  of  Aaturias;  author  of  an  excellent  institute  of  the  law 
of  -S/mz/2,  entitled  Curia  Philififiica;  the  last  part  of  which  treats  of 
commercial  and  maritime  law,  and  has  been  the  foundation  of  many 
subsequent  works  upon  that  subject.  Roccus  has  borrowed  liberally 
from  it.  This  work  is  remarkable  for  its  clearness,  brevity  and  pre- 
cision, and  lays  down  very  sound  and  correct  principles  on  the  sub- 
ject of  maritime  and  commercial  jurisprudence.  The  author  informs 
us,  that  it  was  finished  at  the  city  of  Los  Reyes,  in  the  kingdom  of 
Peru,  on  Christmas  eve,  in  the  year  1615.  It  may  therefore  be 
considered  as  an  American  production.  The  edition  before  us,  was 
printed  at  Madrid,  1 783,  in  folio.  It  is  a  book  of  very  great  authority 
throughout  the  Spanish  dominions,  and  in  our  territories  of  Orleans 


xxiv  Notice  of  Writers  referred  to. 

and  Louisiana,  and  is  often  quoted  by  foreign  writers,  on  subjects 
relating  to  maritime  law. 

BUDD.SUS  (John  Francis},  a  German  professor  at  Halle,  and  af- 
terwards at  Jena,  where  he  died  in  1705.  He  was  the  author  of 
several  works,  and  among  others,  of  a  book  entitled  Elementa  Phi- 
losofihiee  firacticx,  instrumentalis  &  theoretics,  3  vols.  8vo.  the  same 
which  is  so  contemptuously  referred  to  by  our  author,  and  was 
nevertheless  formerly  so  celebrated,  that  the  professors  of  the  pro- 
testant  universities  of  Germany,  took  it  for  the  text  of  their  lec- 
tures. He  also  wrote  the  great  German  historical  dictionary,  printed 
several  times  at  Basil  and  Ldfisig,  in  2  vols.  fol. 

CLEIRAC,  a  Frenchman,  author  of  a  valuable  work  on  maritime 
*>  law,  entitled  Les  UK  &  Coutumes  de  la  Mer.  It  contains,  1.  The 
text  of  the  laws  of  Oleron,  Wisbuy,  and  the  Hanse  Towns,  with 
learned  notes.  2.  Le  Guidon  de  la  Mer,  an  ancient  French  treatise 
on  maritime  contracts,  and  principally  on  Insurance,  divided  into 
sections,  in  the  form  of  an  institute,  and  enriched  with  notes  fraught 
with  much  curious  learning.  3.  The  laws  or  ordinances  of  Antwerp. 
and  Amsterdam,  concerning  insurance.  4.  A  treatise  on  the  French 
admiralty  jurisdiction,  and  a  copious  index  to  the  whole  work. 
There  have  been  several  editions  of  this  book;  the  first  that  we 
find  any  mention  of,  was  printed  in  1647;  and  the  last  at  Amster- 
dam,'m  1788. 

CODE  DES  PRISES.  This  French  work  is  well  known  in  this 
country,  but  it  is  not  generally  understood  that  there  are  four 
editions  of  it,  or  rather  four  different  works,  all  nearly  on  the  same 
plan,  but  published  at  different  periods;  and  containing  more  or 
less  information  on  the  important  subject  of  maritime  captures. 

The  first  is  the  Old  Code  des  Prises,  by  M.  Chardon,  who  was 
secretary,  under  the  monarchy,  to  the  council  of  prizes  at  Paris.  It 
is  entitled  Code  des  Prises;  ou  recueil  dcs  Edits,  Declarations,  &c. 
defmis  1400,  jusqu'  a  present;  Imprime  fiar  ordre  du  Roi;  2  vols. 
4to.  Paris,  imprimerie  royale,  1784. 

The  second  is  entitled  Code  des  Prises  maritimes  &  armements 
en  course,  par  le  Citoyen  G,,  hommc  de  lot;  2  vols.  12mo.  Paris, 
Garnery,  an  7. 

The  title  of  the  third  is  JVbuveau  Code  des  Prises,  par  le  Cit.  Le 
Beau,  4  vols.  8vo.  Paris,  Imjirimerie  de  la  Republique,  ans  7,  8  £5*9. 
It  is  brought  down  to  the  3d  Prairial,  8th  year,  (23d  of  May,  1800.) 

The  fourth  is  entitled  Code  des  Prises  &  du  Commerce  de  terre 
c5*  de  ?ner,  par  F.  N.  Dufriche  Foulaines,  jurisconsulte;  2  vols.  4to. 


Notice  of  Writers  referred  to.  XX  v 

small  close  print.  Paris,  Dufirat  du  Verger,  1804.  It  is  more  copi- 
ous and  complete,  and  is  brought  down  to  a  later  period,  than  any 
of  the  others. 

CONSIHA  BELGICA  is  a  collection  of  official  opinions  given  to 
the  states  general  of  the  United  Netherlands,  by  the  law  officers  of 
that  government. 

CONSILIA  HOLLANDICA,  are  the  opinions  of  the' law  officers  of 
the  provincial  states  of  Holland  and  West  Friesland,  collected  in 
like  manner. 

CONSOLATO  DEL  MARE.  This  celebrated  work  is  but  little  known 
in  this  country,  owing  to  the  difficulty  of  procuring  it  from  abroad, 
and  to  its  being  written  in  languages  not  generally  understood.  The 
forty  three  first  chapters  have  been  translated  from  the  Amsterdam 
edition,  by  Westerveen,  and  published  in  the  American  Law  Journal, 
(vol.  ii.  p.  385,  and  vol.  iii.  p.  1.)  but  they  relate  only  to  the  form  of 
judicial  proceedings  in  the  maritime  courts  of  the  kingdom  of  Ma- 
jorca,a.nd  are  thought  by  many  not  to  belong  to  the  ancient  Consotato. 

The  oldest  edition  of  this  work  has  lately  been  discovered  by  Mr. 
Boucher,  in  the  Imperial  library  at  Paris.  It  is  embodied  with  the 
marine  ordinance  of  Barcelona,  of  which  it  constitutes  the  principal 
part,  and  was  printed  in  that  city,  in  the  Catalonian  language,  in 
the  year  1494,  thirty-seven  years  only  after  the  discovery  of  the 
art  of  printing.  Mr.  Boucher  has  favoured  the  public  with  a  trans- 
lation of  it  into  the  French  language,  printed  at  Paris  in  1808, 
several  copies  of  which  have  already  made  their  way  into  this 
country.  Mr.  Hall,  of  Baltimore,  (to  whom  the  profession  is  already 
indebted  for  a  very  good  translation  of  the  Praxis  Curix  Admirali- 
tatis,  enriched  with  learned  and  useful  notes,)  is,  we  understand,  at 
present  employed  in  translating  it  into  the  English  language,  which 
will  entitle  him  to  the  thanks,  not  only  of  the  scientific,  but  also  of 
the  practical  lawyer.  That  excellent  book  has  been  styled,  with ,/-..; 
great  propriety,  the  Pandects  of  maritime  law. 

A  copy  of  the  beautiful  edition  of  the  Consolato,  published  at  Ma- 
drid, in  179 1,  in  the  Catalonian  language,  with  a  Spanish  translation, 
by  Don  Antonio  de  Ca/imany  y  de  Monpalau,is  in  the  library  of  the 
American  Philosophical  Society,  to  whom  it  was  presented  by  his 
excellency,  the  marquis  de  Casa  Yrujo. 

CUNJEUS  or  a  Cun<eo  (Gulielmus)  author  of  a  small  treatise  on 
Suretiship  (De  matcria  securitatifi).  See  MERCATURA  (De}. 

CURIA  PHIMPICA,  See  BotAnos. 


x  X vi  Notice  of  Writers  -referred  to. 

CYNUS  or  Cino,  was  a  learned  Italian  lawyer,  who  flourished  in 
the  beginning  of  the  14th  century.  He  died  at  Bologna,  in  1336. 
He  wrote  a  commentary  on  the  CWe,and  some  parts  of  the  Digests. 

GALIANI  ^theabbe/'Vrrfz«a«rf&),is  a  celebrated  Neapolitan  writer. 
He  was  secretary  to  the  Neapolitan  legation  at  Paris,  and  after- 
wards a  member  of  the  Royal  Council  of  Commerce  in  his  own 
country.  In  the  year  1782,  he  published  at  Naples,  his  treatise  De' 
doveri  de'  Principi  neutrali  -verco  i  Principi  guerreggianti,  e  di 
questi  verso  i  neutrali;  (Of  the  duties  of  neutral  and  belligerent  princes 
towards  each  other.')  It  was  translated  into  German  by  professor 
Katiig,  and  published  at  Leip&ick,  in  two  octavo  volumes,  in  1790, 
under  the  title  of  Recht  der  Neutralitet  ((he  law  of  Neutrality.) 
The  life  of  Galiani  has  been  written  and  published  at  Naples,  by 
Diodati,in  1788.  See  LAMPREDI. 

GAMA  (Antonio  de},  born  at  Lisbon  in  1520;  was  counsellor  of 
state,  and  high  chancellor  to  the  king  of  Portugal.  He  wrote,  among1 
other  things,  a  book  of  reports  of  Portuguese  decisions,  entitled, 
Decision/ s  Supremi  Luaitanix  Senatus,  in  folio.  He  died  in  1595,  at 
the  age  of  75  years,  greatly  respected  for  his  immense  erudition. 

GENTILIS  (jHbericus;)  born  in  the  marquisate  of  Ancona,  in  the 
Roman  state,  about  the  year  1550;  was  professor  of  the  civil  law  at 
Oxford,  and  died  at  London  in  1608.  He  published  a  treatise,  De 
jure  belli,  in  three  books,  which  has  not  been  useless  to  Grotius, 
and  in  which,  at  that  early  day,  he  supported  the  belligerent  claims 
of  Great  Britain,  against  the  pretensions  of  neutrals.  Lam/iredi,  in 
his  preface,  says,  that  he  was  the  first  who  endeavoured  to  intro- 
duce a  system  of  jurisprudence  amidst  the  din  of  arms.  Although 
he  may  be  properly  considered  as  an  English  writer,  it  is  remarka- 
ble that  his  name  does  not  appear  in  the  Bibliotheca  Legum  Angli<e. 

GRONOVIUS  (John  Frederick},  was  born  at  Hamburgh,  in  1611, 
and  was  professor  of  literature  at  De-venter,  and  afterwards  at  Ley- 
den,  where  he  died  in  1672.  He  published  many  valuable  editions 
of  Latin  authors,  and  among  others  of  Groiiu^,  Dejure  belli  ac  fiacis, 
with  learned  annotations.  His  son,  James  Gronomus,  distinguished 
himself  likewise,  by  several  works  of  learning  and  erudition. 

GUIDON  DE  LA  MER  (£<?).  See  CLEIRAC. 

HORNE  (Thomas  Harttuell},  an  Englinhman;  is  the  author  of  an 
useful  work,  entitled:  A  comfiendium  of  the  statute  laivs  and  regu- 
lations of  the  court  of  admiralty,  relative  to  shi/is  rf  war,  Jiriratecrx, 
firiz'ex,  recaptures  and  prize  money;  with  an  appendix  of  notes,  fire- 


Notice  of  Writers  referred  to.  xxvii 

cedents,  &c.  168  pages,  duodecimo;  London,  Clarice,  1803.  This 
book  is  scarce  in  America. 

IMOLA  (Joannes  de),  was  professor  of  the  civil  law,  at  Bologna,  in 
the  Pafial  states,  and  a  disciple  of  the  elder  Baldua.  He  composed 
a  great  number  of  professional  works,  which  were  much  admired 
in  his  day,  but  are  at  present  no  longer  read.  He  died  in  1436. 

KOCH,  a  Frenchman,  professor  of  law  at  the  university  of  Stras- 
burgh,  and  member  of  the  national  institute,  is  the  author  of  an  ex- 
cellent work  in  the  French  language,  entitled,  Abrege  de  I'Histoire 
des  Traites  de  paix  entre  les  puissances  dc  I' Europe,  depuis  la  paix 
de  Westphalie,  Basil  1796.  4  vols.  8vo. 

LAMPREDI,  was  a  professor  of  the  law  of  nations,  at  the  univer- 
sity of  Pisa  in  Tuscany.  He  published  at  Florence,  in  the  year  1788, 
his  Trattato  del  commercio  dc'  popoli  neutrali  in  tempo  dl  guerre, 
(a  treatise  on  the  commerce  of  neutral  nations  in  time  of  war, .)  It  has 
been  translated  into  German,  by  professor  Kcenig,  Leipsig,  1790; 
and  into  French,  by  M.  Peuchet,  Paris,  1802,  one  vol.  octavo.  M. 
Peuchet  tells  us,  that  the  ministry  of  Louis  XVI.  had  ordered  a 
translation  of  this  work  to  be  made,  but  it  was  not  executed  during 
his  reign. 

Lampredi  combats  on  many  points,  the  doctrines  of    Galiani, 

whose  book  is  written  in  favour  of  the  freedom  of  the  neutral  flag, 
while  his  opponent  supports  the  opposite  doctrine,  so  strenuously 
contended  for  by  Great  Britain.  These  two  works  were  written  at 
the  close  of  the  American  war;  the  one  at  Naples,  which  was  at  that 
time  under  French,  a.nd  the  other  in  Tuscany,  which  was  under 
British  influence.  See  GALIANI. 

LOCCENIUS  (Johannes},  author  of  a  valuable  treatise  in  three 
books,  entitled,  Dejure  maritime  &  navali.  It  has  been  published 
by  Hdneccius,  together  with  Stypman's  Jus  maritimum  &fiaulicum} 
and  Kuricke's  Diatribe  de  Assecnrationibus,  under  the  title  of  Scrip- 
forum  de  jure  nautico  &  maritimo  Fasciculus,  in  two  vols.  4to.  Hat. 
Magdeb.  1740. 

MARQUAKDUS  (Johannes'],  a  German,  is  the  author  of  a  very 
learned  treatise  on  mercantile  law,  in  the  Latin  language,  entitled, 
Tractatus  politico-juridicus  de  jure  mercatorum  &  commerciorum 
tingulari,  in  4  books,  printed  at  Frankfort,  in  1 662, folio,  1316  pages. 
It  contains  a  number  of  public  documents,  historical  facts,  and  other 
valuable  information. 

MENOCHIUS  (James),  a  lawyer  of  Puvia,  in  Italy,  was  so  learned, 
that  he  was  called  the  Baldus  and  Bartholus  of  his  age;  no  con- 


xxviii  Notice  of  Writers  referred  to. 

tempiible  names  among  the  civilians.  He  was  president  of  the  su- 
perior court  of  Milan,  and  died  in  1607,  at  the  age  of  75.  Among 
a  variety  of  professional  works  which  he  published,  and  were  much 
read  in  his  time,  he  wrote  a  treatise  in  folio,  De  arbitrariis  Judi- 
cum  qmestionibus  £5*  causis  condliorum,  which  is  the  work  to  which 
our  author  refers  in  his  25th  chapter,  page  196. 

MERCATURA  (-^e),  a  large  and  valuable  collection  of  treatises 
and  dissertations,  by  various  authors  of  different  nations,  on  subjects 
of  maritime  and  commercial  law.  It  is  entitled,  De  Mercaturd,  De- 
cisioncs  &  Tractatua  varii  &  de  rebus  ad  earn  fiertinentibus,  \  vol. 
fol.  Colon,  1622.  It  contains,  amongst  other  things,  the  treatises  of 
Straccha  and  Santerna,  and  the  little  tract  of  Cunxus,  mentioned 
in  this  book;  (See  STRACCHA,  SAKTERNA,  CUNAUS.)  It  contains 
also,  a  collection  of  the  decisions  of  the  court  of  Rota  of  Genoa,  on 
subjects  of  mercantile  law,  to  the  number  of  2 1 5,  much  in  the  man- 
ner of  our  common  law  reports:  See  Ingersolfs  Roccus,p.  53.  in  not. 
The  remainder  consists  of  a  number  of  other  tracts  on  similar  sub- 
jects, by  various  authors,  which,  as  they  are  not  mentioned  in  this 
book,  we  think  it  unnecessary  to  notice  here. 

MORNAC  (dnthony},  a  French  advocate,  who  died  in  the  year 
1619.  He  wrote  a  great  number  of  professional  works,  which  were 
published  at  Paris,  in  1724,  in  four  vols.  ./b/zo.  He  was  a  man  of 
great  erudition. 

NOODT  (Gerardus),  of  Nimeguen,  was  a  Dutch  professor,  whose 
writings  on  the  Roman  law,  are  in  very  great  repute  among  the 
civilians.  His  works  have  been  edited  by  Barbeyrac,  the  celebrated 
commentator  of  Puffendorff  '*x\&.  Grotius,  and  printed  at  Leyden,  in 
two  folio  volumes,  under  the  title  of  Gerardi  JVoodt,  Noviomagi, 
Jufiscon^uUi  &  dnteceasoris,  ofitra  omnia.  Lugd.  Bat,  1760. 

OMPTEDA  (Henry  Lewis,  Baron  von'),  was  ambassador  of  the 
king  of  Great  Britain,  as  elector  of  Hanover  and  duke  of  Bruns- 
wick-Lunenburg,  to  the  Diet  of  Ratisbon,  and  his  minister  pleni- 
potentiary to  the  electoral  court  of  Munich.  He  is  the  author  of  an 
excellent  work  in  the  German  language,  entitled,  Litteratur  des 
gcsammten  sowohl  naiiirlichen  als  fiositiven  Volkerrcchts,  or  Litera- 
ture of  thf  natural  and  positive  law  of  nations;  Munich,  1785,  2  vols. 
8vo.  It  is  a  biographical,  critical  and  bibliographical  notice  of 
the  various  authors  who  have  written  on  the  law  of  nations,  and  of 
their  works,  down  to  the  time  of  its  publication,  arranged  in  a  very 
methodical  o;der. 

Roc c us  (Franciscus),  a  Neapolitan,   author  of  the   celebrated 


Notice  of  Writers  referred  to.  xxix 

NOTABILIA  de  navibun  et  naulo;  item  de  assecurationibus.  An  excel- 
lent English  translation  of  this  well  known  work,  the  original  of 
which  is  very  scarce,  has  been  lately  published,  with  valuable  notes, 
by  Joseph  Reed  Ingersoll,  esq.  counsellor  at  law  of  this  city;  one 
vol.  156  pages,  octavo;  Philadelphia,  Hopkins  and  Earle,  1809. 
This  translation  is  executed  with  great  judgment  and  accuracy, 
and  may,  in  our  opinion,  well  supply  the  place  of  the  original. 

SANTERNA,  (Peter")  a  Portuguese  writer,  author  of  a  treatise  upon 
Insurance,  entitled,  Tractatus  de  assecurationibus  &  sponsionibus 
Mercatorum.  See  MERCATURA  (De). 

STR ACCRA  (Benvenuto),  an  Italian  writer,  author  of  a  valuable 
treatise  on  the  law  of  merchants,  entitled,  De  Mercaturd,  seu 
Mercatore.  See  MEKCATURA  (Z)e). 

Us  ET   COUTUMES  DE   LA  MER.   See  CLEIRAC. 

VALIN  (Rene  Josue),  was  born  at  Rochelle,  in  France,  where  he 
exercised  tl\e  profession  of  an  advocate,  and  was  king's  attorney, 
in  the  court  of  admiralty,  and  in  the  municipal  court.  He  was  also 
a  member  of  the  academy  of  that  city,  where  he  died  in  1765.  His 
celebrated  commentary  on  Louis  XIV.'s  Ordonnance  dc  la  marine, 
published  at  Rochelle,  in  1760,  in  two  vols.  4to.  is  well  known  in 
the  United  States;  but  few  are  acquainted  in  this  country  with  his 
Treatise  on  Captures,  published  at  the  same  place,  in  763,  in  one 
vol.Svo.  This  excellent  work,  worthy  of  the  high  reputation  of  its 
author,  is  unfortunately  out  of  print;  the  copy  which  we  have  in  our 
possession,  was  the  last  which  remained  two  years  ago  in  the  book- 
seller's store,  at  Rochelle.  It  is  to  be  hoped  that  a  new  edition  of  it 
will  soon  be  published. 

VERWER  (Adriaan},  author  of  a  work  in  the  Low  Dutch  language, 
entitled,  Nederlants  See  Rechten,  Averyen  >.n  Bodemeryen  or  The 
maritime  law  of  the  Netherlands,  and  the  law  of  average  and  bot- 
tomry. It  contains,  1.  The  laws  of  Wisbuy,  and  the  ordinance  of 
Amsterdam,  with  notes.  2.  Several  ordinances  of  the  Spanish  kings, 
sovereigns  of  the  Netherlands.  3.  A  treatise  on  the  law  of  bottomry. 
4.  A  treatise  on  average,  by  Quintijn  Weijtsen,  with  an  index  to 
the  whole.  The  edition  before  us  was  printed  at  Amsterdam,  in 
1764. 

ZENTGRAVIUS  (John  Joachim},  was  professor  of  divinity  at  Stras- 
burg,  and  wrote  in  1684,  a  dissertation,  entitled,  De  originc,  veri- 
tate  &  obligatione  juris  gentium,  in  which  he  main  rained  against 
Puffendorjf,  the  existence  of  a  positive  lau>  of  nations;  a  controversy 
which  called  forth  the  abilities  of  several  writers  at  that  time,  out 


XXX  Notice  of  Writers  referred  to. 

at  this  day  appears  little  more  than  a  dispute  about  words.  Zent- 
graviu*  also  wrote  a  dissertation  on  Commerce  between  neutrals 
and  belligerents.  Strasb.  1690. 

ZOVCH  (Richard"),  an  Englishman,  born  in  1590,  in  Wiltshire^ 
was  professor  of  civil  law  in  the  university  of  Oxford,  and  was  made 
judge  of  the  high  court  of  admiralty,  by  Charles  II.  at  the  restora- 
tion, in  1660.  He  wrote  some  elementary  tracts  on  the  civil  law, 
and  distinguished  himself  in  the  celebrated  controversy  which  took 
place  in  that  reign,  on  the  subject  of  admiralty  jurisdiction,  and 
was  principally  managed  on  the  part  of  the  civilians,  by  himself, 
Dr.  Exton,  and  Dr.  Godolphin.  He  wrote  a  treatise  on  the  law  of 
nations,  entitled,  Jurist  Judicii  Fecialis  sive  juris  inter  gentes  is* 
quastionum  de  eodem  exfilicatio,  in  which  he  does  little  more  than 
retail  the  opinions,  and  often  copies  the  very  words  of  Grotius. 
Although  this  work  is  frequently  quoted  by  our  author,  he  appears 
to  have  been  sufficiently  sensible  of  its  want  of  real  merit.  It  was 
published  at  London,  in  1650,  in  4to.;  and  at  the  Hague,  in  1659, 
in  16mo. 


A  TABLE 


AMERICAN  AND  ENGLISH  CASES, 


CITED  OR  REFERRED  TO  IN  THE  NOTES. 


Note:  Those  printed  in  italics  are  American  cases. 

Page 

AMITIE'(L')  us 

Atlas  (the)  1 1 1 

Bell  z>.  Gilson  -       167 

Blaireau  (the)  156 

Brandon  v.  Curling  -      172 

v.  Nesbitt  167 

Bristow  v.  Towers  167 

Cheline's  case                                     -  134 

Casseres  v.  Bell  -       195 

Demjisey  v.  Ins.  Co.  of  Penn.                                       -  169 

Diana  (the)                                                           -  -        105 

Donaldson  v.  Thompson  1 69 

Emmanuel  (the)         -  111 

Flore  (the)  145 

Fortuna  (the)  -         105 

Franklin  (the)  99 

Furtado  v.  Rogers  172 

Glass  £3*  Gibbs  v.  the  Betsey  136 

Grange  (the}  6 1 

Henckle  v.  Royal  Exch.  Ass.  Co.  -       166 

Hendrick  EC  Maria  (the)  38,  115 

Herstelder  (the)  38 

Hollingsivorth  v.  the  Betsey  136 

Hoop,  Cornelius,  (the)  1 66,  1 67 

Hudson  v.  Guestier                           -             -  38 

Immanuel  (the)  -       111 
Jonge  Tobias  (the)                                                    -         96,99 

Kellner  v.  Lemesurier          -  -         172 


xxxii                       TABLE  OF  CASES. 

Page 

Lothian  v.  Henderson  169 
M'llvaine  v.  Core's  lessee  -  -  -  176 
Mercurius,  Geddes  (the)  -  99 
Mercurius,  Meincke  (the)  96,  99 
Murray  v.  the  Charming  Betsey  176 
JVatterstrom,  admr.  \.  Shift  Hazard  (District  Court,  Mas- 
sachusetts) -  -  171 
Neutralitset,  (the)  85,  96,  99 
Planche  v.  Fletcher  -  131,166 
Potts  v.  Bell  16f 
Princesa  (the)  -  99 
Rebecca  (the)  1 1 1 
Rosalie  and  Betsey  (the)  99 
JRose  v.  Himely  38,  172 
Silesia  Loan  Case  .  196 
Santa  Cruz  (the)  42 
Smart  v.  Wolff  38 
Talbot  v.  Jansen  -  .  -  136,175 
Thellusson  v.  Ferguson  166 
Vryheid(the)  145 
William  and  Mary  (the)  .  145 


TABLE 

OF 

REFERENCE, 

1  O  enable  the  reader  to  find  in  their  numerical  order,  and  by 
the  books  to  which  they  respectively  belong,  the  several  titles  of 
the  Institutes,  Digests,  and  Code,  quoted  in  this  work. 

INSTITUTES. 

De  rerum  divisione  &  adquirendo  ipsarum  dominio.  Lib.  2.  tit.  1. 

DIGESTS. 

1C?*  The  titles  in  italics  are  translated  into  English  in  the  Ameri- 
can Law  Journal. 

De  adquirendo  rerum  dominio,  lib.  41.  tit.  1. 

captivis  Sc  postliminio,  lib.  49,  tit.  15. 

collegiis  &  corporibus,  lib.  47.  tit.  22. 

distractione  pignorum,  lib.  20.  tit.  5. 

exercitorid  actions,  lib.  14.  tit.  11.  (2  Am.  Law  Journ.  462.) 

institoria  actione,  lib.  14.  tit.  3. 

jure  Fisci,  lib.  49.  tit.  14. 

nautico  fesnorc,  lib.  22.  tit.  2.  (3  Am.  Law  Journ.  158.) 

noxalibus  actionibus,  lib.  9.  tit.  4. 

origine  juris,  lib   1.  tit.  2. 

publicanis  &  vectigalibus,  lib.  39.  tit.  4. 

ritu  nuptiarum,  lib.   23.  tit.  2. 
Locati,  conducd,  lib.  19.  tit.  2. 
Si  quadrupes  pauperiem  fecisse  dicatur,  lib.  9.  tit.  1. 

CODE. 

De  legibus,  If  constitutionibus  principum,  lib.  1.  tit.  14. 
naufragiis,  lib.  1 1.  tit.  5. 

Ne  uxor  pro  marito,  Sec.  conveniatur,  lib.  4.  tit.  12. 

|C7"  The  four  works  which  compose  the  body  of  the  civil  law, 
to  wit:  the  Institutes,  Digests,  Code  and  Novels,  are  divided  into 
JBooka,  Titles,  Laws  and  Sections  or  paragraphs,  and  are  generally 
quoted  by  the  English  civilians,  by  referring  to  those  divisions,  as 
for  instance,  Dig.  I.  1.  tit.  4.  /.  5.  §  7.,  and  sometimes  Dig.,  D.,  or 


xxxiv  TABLE  OF  REFERENCE. 

ff.  1.  4.  5.  7.,  for  Digest,  Book  I.,  ZVf/e  4.,  Law  5.,  Section,  or  P«- 
ragrafih  7 .  The  civilians  on  the  continent  of  Europe,  on  the  con- 
trary, quote  the  heading  of  each  title,  and  then  refer  only  to  the 
numerical  subdivisions  of  law  and/iaragrafihj  sometimes  even,  they 
quote  the  first  words  of  the  law,  and  refer  to  the  paragraph  only 
by  its  number.  Thus  our  author,  page  41,  refers  generally  to  the 
law  non  omnium,  which  is  the  twentieth  law  of  the  third  title  of  the 
first  book  of  the  Digests.  The  references  in  this  work  being  all  by 
the  heading  of  the  title,  and  not  referring  to  its  number,  or  to  that 
of  the  book  in  which  it  is  contained,  the  foregoing  table  is  presented 
to  our  readers,  that  they  may  with  greater  ease  turn  to  the  several 
titles  of  the  books  of  the  Roman  law,  which  are  quoted,  or  referred 
to  in  the  course  of  this  work. 


W 


ON  THE 

LAW  OF  WAR.  % 

CHAPTER  I. 
Of  War  in  general* 

HEN  Cicero  said,  1.  1.  de  Offi.  c.  11.,  that  there  are 
two  kinds  of  contests  between  men,  the  one  by  argument, 
and  the  other  by  force,  by  the  latter  of  these  he  undoubtedly 
meant  war;  though  he  did  not  intend,  as  Grotius  would  have 
it,*  to  give  thereby  a  definition  of  that  state  of  things.  Such 
a  definition  would  be  imperfect,  as  is  clearly  that  of  Albericus 
Gentilis,  who  defines  war,  Ll.de  Jure  Bell.  c.  2.,  a  just  con- 
tention of  the  public  force.  Both  these  definitions,  although  the 
first  and  the  least  perfect  is  approved  of  by  Grotius,  are  defec- 
tive; and  the  reader  will  be  convinced  of  it  by  attending  to 
the  following  which  I  have  myself  attempted,  and  which,  if  I 
mistake  not  contains  all  the  ingredients  which  constitute  a 
state  of  war.  WAR,  then,  is  a  contest  carried  on  between  inde- 
pendent persons,  by  force,  or  fraud,  for  the  sake  of  asserting 
their  rights.  Let  us  now  proceed  to  examine  it  in  detail. 

I  have  said  that  war  is  a  contest.  By  this  word  I  have  not 
meant  to  express  merely  the  act  of  fighting,  but  that  state  of 
things  which  is  called  war;  for  if  the  thing  itself  be  defined 
with  sufficient  accuracy,  its  incidents  will  necessarily  follow. 
Thus  jurists  have  defined  slavery,  not  merely  the  act  by 
which  freemen  are  subjected  to  the  dominion  of  others,  but  the 
very  state  and  condition  of  servitude.  Grotius  himself  has  at- 
tended to  this  distinction  in  his  definition  of  war,  which  he 
borrowed  from  Cicero. 

*  De  Jure  B.  ac  P.  1.  1.  c.  1.  §  2.  n.  1, 

fA 


2  TREATISE  ON  THE  LAW  OF  WAR. 

War  is  also  a  contest  between  independent  persons.  This  ap- 
plies not  only  to  nations,  but  to  individuals  not  living  in  a 
state  of  society;  for  both  are  equally  independent.  Nor 
can  this  war  between  individuals  be  called  a  private  war; 
because  the  word  private  can  only  be  used  in  contra-dis- 
tinction  to  the  word  public,  which  cannot  apply  where  there 
exists  no  society.  Wherever  men  are  formed  into  a  social 
body,  war  cannot  exist  between  individuals;  the  use  of  force 
between  them  is  not  w«r,  but  a  trespass,  cognisable  by  the 
municipal  law.  Thus,  if  I  extort  from  my  debtor  the  ten  pieces 
which  he  owes  me,  I  incur  the  penalty  of  the  Julian  law 
against  private  force;  because  beating  and  wounding *do  not 
alone  const! tute  force  in  the  sense  of  the  prohibition,  but  it 
applies  to  every  case  in  which  a  man  obtains  even  what 'be- 
longs to  him,  by  any  other  than  legal  means.  L.  7.  Jf.  ad  L. 
y«7.  de  viprivatd. 

War  is  a  contest  by  force.  I  have  not  said  by  lawful  force^ 
for  in  my  opinion,  every  force  is  lawful  in  war.  Thus  it  is  law- 
ful to  destroy  an  enemy,  though  he  be  unarmed  and  defence- 
less^ it  is  lawful  to  make  use  against  him  of  poison,  of  missile 
weapons,  of  firearms^  though  he  may  not  be  provided  with 
any  such  means  of  attack  or  defence;  in  short,  every  thing  is 
lawful  against  an  enemy.  I  know  that  Grothis*  is  of  a  dif- 
ferent opinion  with  regard  to  the  use  of  poison,  and  that  he 
distinguishes  between  the  different  kinds  of  missile  wea- 
pons.! ^  know  that  Zouch,  who  hardly  ever  decides  upon 
any  point,  is  in  doubt  upon  this  question.:):  But  if  we  take 
for  our  guide  nature,  that  great  teacher  of  the  law  of  nations, 
we  shall  find  that  every  thing  is  lawful  against  an  enemy  as 
such.  We  make  war  because  we  think  that  our  enemy,  by  the 
injury  that  he  has  done  us,  has  merited  the  destruction  of 
himself  and  of  all  his  adherents.  As  this  is  the  object  of  our 
warfare,  it  is  immaterial  what  means  we  embrace  to  accom- 
plish it.  A  judge  will  not  be  called  unjust  who  orders  a  con- 
victed criminal  to  be  put  to  death  by  the  sword  of  the  execu- 
tioner, though  he  be  unarmed  and  bound  with  chains;  for  if 

•  L.  3.  c.  4.  §  15.        f§  18.         t  Part  2.  $10.Q..5&.6. 


TREATISE  ON  THE  LAW  OF  WAR.  3 

he  should  unbind  and  arm  him,  it  would  no  longer  be  the 
punishment  of  .a  crime,  but  a  trial  of  courage  and  good  for- 
tune. If  you  think  that  you  ought  only  to  make  use  of  the 
same  weapons  against  your  enemy  that  he  himself  makes  use 
of  against  you,  you  must  at  the  same  time  be  of  opinion,  that 
his  cause  is  equally  good  with  your  own,  and  therefore  that  he 
is  entitled  to  the  same  advantages.  But  on  the  contrary,  your 
enemy  stands  with  respect  to  you,  in  the  situation  of  a  con- 
demned culprit;  and  so  indeed  you  stand  with  respect  to 
him;  though  in  the  eyes  of  third  persons,  who  are  friends  to 
both  parties,  your  cause  and  his  are  equally  just,  and  you  are 
both  equally  in  the  right. 

Nor  oughtfraud  to  be  omitted  in  a  definition  of  war,  as  it 
is  perfectly  indifferent  whether  stratagem  or  open  force  be 
used  against  an  enemy.  There  is,  I  know,  a  great  diversity  of 
opinion  upon  this  subject:  Grotilts  quotes  a  variety  of  au- 
thorities on  both  sides  of  the  question.*  For  my  part,  I  think 
that  every  species  of  deceit  is  lawful,  perfidy  only  exceptedj 
not  that  any  thing  may  not  lawfully  be  done  against  an  enemy, 
but  because,  when  a  promise  has  been  made  to  him,  both  par- 
ties are  devested  of  the  hostile  character  as  far  as  regards  that  • 
promise.  And  indeed  when  the  reason  of  war  admits  of  every 
mode  to  destroy  an  enemy,  we  cannot  account  for  so  many 
authorities  and  precedents  against  making  use  of  fraud  or  de- 
ceit, but  that  as  well  the  writers  on  the  law  of  nations  as  the 
leaders  of  armies  improperly  confound  justice-,  which  is  the 
object  of  our  present  inquiry,  with  generosity,  which  is  not 
uncommon  among  warriors.  Justice  in  war  is  indispensable; 
but  generosity  is  altogether  a  voluntary  act.  That  leaves  us  at 
liberty  to  destroy  an  enemy  by  every  possible  means;  this 
grants  to  him  every  thing  that  we  would  wish  to  be  grant- 
ed to  ourselves  in  the  like  case;  and  thus  war  is  carried  on  as 
a  duel  formerly  was  in  those  countries  in  which  that  mode  of 
terminating  differences  was  admitted.  Justice  permits  the  use 
of  numerous  armies,  of  machines,  firearms  and  other  imple- 

*  L.  3.  c.  l.§6.  £c. 


4  TREATISE  ON  THE  LAW  OF  WAR. 

ments  of  war,  that  the  enemy  is  not  possessed  of;  while  gene- 
rosity, on  the  other  hand,  forbids  it.  Justice  permits  every 
kind  of  deceit,  except  perfidy,  as  I  have  before  mentioned; 
generosity  does  not  admit  of  it,  perhaps  even  though  it  be  em- 
ployed by  the  enemy;  for  cunning  is  a  token  of  fear,  while  the 
magnanimous  mind  'is  never  afraid.  St.  Augustine  says,* 
"  that  when  a  just  war  is  undertaken,  it  is  of  no  consequence 
whether  it  be  carried  on  by  fraud  or  open  force."  This 
clearly  applies  to  justice,  and  it  is  in  fact  justice  that  he  treats 
of.  But  when  the  Roman  consuls  wrote  to  king  Pyrrhus: 
"  We  do  not  wish  to  contend  -with  you  by  means  of  bribery  or 
fraud"\  and  at  the  same  time  gave  him  notice  of  the  offer  that 
had  been  made  to  them  to  poison  him,  they  certainly  did  an 
act  of  the  greatest  generosity. J  Many  nations  have  often 
preferred  generosity  to  justice;  others  have  preferred  justice 
to  generosity:  the  Romans  themselves  sometimes  displayed 
the  one,  sometimes  the  other.  If  then,  as  I  have  said  before, 
authorities  and  precedents  are  reconciled,  the  point  will  be 
clearly  settled  by  recollecting  that  justice  may  always  be  in- 
sisted upon,  though  generosity  may  not. 

Lastly,  the  definition  says,  for  the  sake  of  asserting  their 
rights.  That  is  to  say,  in  order  to  defend  or  recover  what  is 
our  own;  for  that  is  the  sole  cause,  though  I  do  not  mean  to 
say  that  it  is  the  end  or  object,  of  war.  A  nation  which  has  in- 
jured another,  is  considered,  with  every  thing  that  belongs  to 
it,  as  being  confiscated  to  the  nation  that  has  received  the  in- 
jury. To  carry  that  confiscation  into  effect  may  certainly  be 
the  object  of  the  war,  if  the  injured  nation  thinks  proper;  nor 
is  the  war  to  cease  as  soon  as  she  has  received  a  reparation  or 
equivalent  for  the  injury  suffered.  The  whole  commonwealth, 
and  all  the  persons  as  well  as  the  things  contained  within  it, 
belong  to  the  sovereign  with  whom  we  are  at  war,  and  in  the 
same  manner  as  we  may  seize  upon  the  person  and  upon  all 

*  Quzst.  10.  in  Josua.  f  Aul.  Cell.  1.  3.  c.  8. 

$  The  British  government  acted  with  equal  generosity,  when,  by  their 
minister,  Mr.  Fox,  they  gave  notice  to  the  first  consul  of  France,  of  the  offer 
which  had  been  made  to  them  to  assassinate  him.  T. 


TREATISE  ON  THE  LAW  OF  WAR.  5 

the  property  of  our  debtor,  so  a  sovereign  in  war  may  seize 
the  whole  of  the  subjects  and  dominions  of  his  enemy.  It  is 
true  that  we  can  recover  no  more  of  a  debtor  than  what  he  ac- 
tually owes  us;  but  in  war  all  social  ties  are  dissolved  between 
states.  We  make  war  to  subdue  the  enemy  and  all  that  belongs 
to  him,  by  occupying  every  thing  which  belongs  to  the  sove- 
reign of  the  hostile  country,  and  exercising  dominion  over  all 
the  men  and  things  that  are  contained  within  his  territories; 
for  war  is  of  so  general  a  nature  that  it  knows  no  measure  or 
bounds.* 

*  The  Translator  has  taken  the  liberty  to  transpose  this  paragraph  for  the 
sake  of  perspicuity.  As  it  stands  in  the  original,  it  ought  to  come  in  at  the 
beginning-  of  page  2,  of  this  translation,  but  as  it  explains  the  latt  member 
of  our  author's  definition,  it  seems  best  placed  at  the  end.  T. 


M 


TREATISE  ON  THE  LAW  OF  WAR. 


CHAPTER  II. 

Of  a  Declaration  of  War. 

ANY  things  are  required  by  writers  on  the  law  of  na- 
tions in  order  to  make  war  lawful,  and  particularly,  they 
think  it  necessary  that  it  be  publicly  declared,  either  by.  a  spe- 
cial proclamation  or  manifesto,  or  by  sending  a  herald.  This 
v  opinion  certainly  accords  with  the  practice  of  the  modern  na- 
tions of  Europe,  and  it  is  perfectly  clear,  that  before  recourse 
can  be  had  to  arms,  a  demand  of  satisfaction  should  be  made 
for  the  injury  complained  of.  But  this  is  not  the  question  now 
before  us;  it  is  whether  after  a  reparation  has  been  demanded 
and  refused,  war  can  be  immediately  made  without  a  previous 
declaration? 

Albericus  Gentilis*  is  of  opinion  that  it  cannot;  that  a 
war  ought  not  to  be  secretly  commenced,  and  that  the 
adverse  party's  friendship  is  to  be  publicly  renounced.  It 
is  true  that  by  the  law  of  nature  there  is  no  necessity  for  a 
declaration  of  war.  Grotius]  is  of  that  opinion  and  quotes 
several  authorities  in  support  of  it.  He  contends  only  that  the 
law  of  nations  requires  that  a  demand  should  be  made,  by 
which  it  may  appear  that  the  party  is  forced  into  a  war  by  the 
refusal  of  a  satisfaction  which  cannot  be  otherwise  obtained. 
As  to  declarations  of  war4  he  thinks  they  have  been  intro- 
duced in  order  that  it  should  appear  that  the  hostilities  which 
are  committed  are  the  acts  of  the  whole  nation,  or  of  the  sove- 
reign, and  not  merely  of  daring  individuals.  Pujfendorjf^  and 
Huberus\\  are  of  the  same  opinion,  and  support  it  by  the  same 
arguments.  Other  writers,  and  among  them  Gentilis^\  and 
Zouch,**  think  that  a  declaration  of  war  is  necessary,  but  that 
it  may  be  dispensed  with  in  certain  cases.  Hertius]}  does 

*  De  Jure  Bell.  1.2.  c.  1. f  L.  3.  c.  3.§6.  n.  1.  &  2. *  C.3.§11. 

$  Ue  Jure  N.  &  G.  1.  8.  c.  6.  §  9.  15. 1|  De  Jure  Civitatis,  1. 3.  §  4.  c.  4.  n. 

27. If  De  Jure  Belli,  1.  2.  c.  2. *"  De  Jure  int.  gent.  P.  2.  §  10.  Q;  1 

ff  Adnot.  ad  Pufcnd.  I.  8.  c.  6. 9. 


TREATISE  ON  THE  LAW  OF  WAR.  7 

not  deny  that  the  custom  of  declaring  war  has  been  handed 
down  to  us  by  the  Germans,  but  at  the  same  time  he  is 
of  opinion,  that  that  custom  is  not  obligatory,  and  that  no- 
thing can  be  said  of.  those  who  do  not  conform  to  it  but  that 
they  are  not  to  be  considered  as  the  most  civilized  nations. 

Christian  Thomasius^*  a  man  of  sound  judgment,  consi- 
ders, in  my  opinion  very  properly,  a  declaration  of  war  as  an 
act  of  mere  humanity,  to  which  no  one  can  be  compelled;  and 
he  asks,  with  reason,  what  difference  there  is  between  a  war 
that  has  and  one  that  has  not  been  declared,  and  whether  there 
is  a  different  law  for  the  one  and  for  the  other?  He  does  not 
agree  with  Grotius^  who,  quoting  a  passage  from  Dion  Chry- 
sostorn  "that  wars  most  frequently  take  place  without  a  previous 
declaration,"  is  of  opinion  that  such  wars  are  lawful  only  by 
the  law  of  nature.  On  the  contrary,  he  asserts  that  they  are 
justified  by  the  law  of  nations,  and  immediately  afterwards 
he  adds,  that  this  is  a  question  of  so  interesting  a  nature  that 
it  deserves  to  be  made  the  subject  of  a  special  dissertation. 

I  shall  not,  however,  undertake  to  write  a  dissertation  upon 
it,  but  I  shall  devote  to  its  investigation  the  contents  of  the 
present  chapter.  My  opinion  is  that  a  declaration  of  war  is 
not  necessary,  and  that  it  is  one  of  those  things  which  may 
very  properly  be  done,  but  which  cannot  be  insisted  upon  as  a 
matter  of  right.  A  war  may  begin  by  mutual  hostilities  as  *  •< 
well  as  by  a  declaration.  The  states-general  appear  to  have 
understood  it  so,  when  by  their  ordinance  of  the  17th  of  Ja- 
nuary 1665  they  declared,  that -the  Dutch  ships  taken  by  the 
English  might  be  claimed,  because  they  had  been  captured 
before  a  declaration  of  war,  and  before  the  commencement  of 
hostilities  on  the  part  of  the  Dutch.  War  may  be  justly  begun 
upon  the  denial  of  a  just  demand;  for  how  does  that  differ 
from  actual  hostility?  I  admit,  in  the  fullest  extent,  that  it  is 
necessary  in  the  first  instance  to  make  a  demand  of  what  we 
conceive  to  be  due  to  us,  but  not  that  we  are  to  accompany 
that  demand  with  threats  of  hostility,  or  with  an  actual  de- 

*  A.d  Huberum  de  Jure  Civitat.  1.  3.  $  4.  c.  4.  n.  27.        f  Ibid.  §  6.  n.  1. 


8  TREATISE  ON  THE  LAW  OF  WAR. 

claration  of  war.  What  Grotius  says  about  interpellate  applies 
to  a  demand  only;  but  what  he  says  afterwards  about  a  public 
declaration,  denunciatio,  cannot  be  applied  in  like  manner.  Ne- 
vertheless, it  was  from  his  and  other's  prejudices,  although  not 
atall  consonant  to  reason, that  this  subject,  otherwise  very  clear, 
began  to  become  obscure.  Yet  it  must  have  been  evident,  that 
where  there  is  no  judge  between  the  parties,  as  is  the  case 
with  princes,  every  one  may  forcibly  retake  that  which  be- 
longs to  him  and  has  been  unjustly  taken  away  from  him  by 
another,  who  refuses  to  make  restitution.  This  being  the  case, 
every  one  is  at  liberty  to  make  or  not  as  he  pleases  a  declara- 
tion of  war;  the  necessity  of  such  a  solemnity  can  only  have 
been  established  by  an  agreement  which  between  nations  ha* 
no  obligatory  force.* 

Nations  however,  and  princes,  who  are  impressed  with 
sentiments  of  magnanimity,  are  not  willing  to  make  war  with- 
out a  previous  declaration.  They  wish  by  an  open  and  manly 
attack  to  render  victory  more  glorious  and  more  honoura- 
ble. But  here  I  must  repeat  the  distinction  between  justice  and 
generosity,  which  I  have  laid  down  in  the  preceding  chap- 
ter: the  former  permits  the  use  of  force  without  any  previous 
notice;  the  latter  considers  every  thing  in  a  nobler  point  of 
view,  deems  it  inglorious  to  subdue  an  unarmed  and  unpre- 
pared enemy,  and  considers  it  an  unworthy  act  to  attack  and 
despoil  of  a  sudden  those  who  have  come  among  us  on  the 
faith  of  the  public  peace,  which  happens  to  be  suddenly 
broken,  perhaps  without  their  fault.  Hence  Polybius,  1.  13. 
c.  1.,  praises  very  highly  the  custom  of  declaring  war,  which 
was  peculiar  to  the  Achaians  and  to  the  Romans,  and  he 
praises  them  in  the  same  manner  for  abstaining  from  fraud 
and  deceit  in  war;  but  his  praise  in  both  instances  is  due  only 
to  their  generosity. 

Speaking  of  the  Achaians,  Polybius  adds,  that  they  had  also 
appointed  a  particular  place  to  fight  their  battles  in,  precisely 

*  Non  nisi  conventtone,  qute  inter  Gentes  nulla  est.  Our  author  probably 
means  here  that  svich  an  agreement  lias  no  force,  except  between  the  parties 
to  it;  otherwise,  he  would  appear  at  variance  with  himself.  See  pp.  3.  13. 17 

T. 


TREATISE  ON  THE  LAW  OF  WAR.  9 

as  we  read  of  certain  counts  of  Holland,  who  in  ancient  times, 
when  they  intended  to  go  to  war,  not  only  gave  notice  of  it  by 
a  public  declaration,  but  appointed  the  time  and  place  of  com- 
bat. This  appointment  of  time  and  place  Grotius*  himself 
acknowledges  to  be  unnecessary,  and  yet  he  urges  a  declara- 
tion as  if  it  were  indispensable.  If  you  inquire  into  the  reason 
of  this  difference,  you  will  find  no  other  but  that  it  is  not  at 
present  customary  in  Europe  to  appoint  the  time  and  place  of 
combat.  Whence  it  appears,  that  Grotius,  in  writing  his  book 
on  the  law  of  war  and  peace,  has  not  so  much  written  of  the 
universal  law  of  nations,  as  of  the  customs  and  manners  of 
most  of  the  European  countries,  which,  as  he  himself  teaches 
us,|  do  not  constitute  the  law  of  nations.  But  on  other 
points  as  well  as  on  the  present  he  has  extracted  the  law  of 
nations  from  customs  and  manners  alone;  so  that  when  he  has 
found  these  to  differ  on  any  particular  question,  he  has  hardly 
ever  ventured  to  decide  upon  it. 

From  what  Polybius  said,  however,  that  it  was  an  honour 
peculiar  to  the  Achaians  and  Romans  that  they  did  not  make 
war  without  a  previous  declaration,  we  sufficiently  understand 
that  what  is  said  by  Dion  Chrysostom,  that  war  is  most  frequently 
NOT  declared\,  is  certainly  true;  not  merely  because  it  is  not 
required  by  the  law  of  nature,  but  because  such  is  the  custom 
or  usage  of  nations.  And  indeed  a  declaration  of  war  was  not 
so  frequent  among  other  nations,  as  among  the  Romans  and 
Achaians.  Nor  was  such  a  declaration  made  by  either  party 

when  the  other  nations  of  Greece  waged  war  with  the  bar- 

" 

barians  or  with  one  another;  nor  d<j  we  read  of  the  Jews, 
who  went  to  war  by  God's  command,  that  they  ever  declared 
war  against  their  enemies.  Neither  did  the  Macedonians 
make  a  public  declaration  of  war  when  they  destroyed 

*  L.  3.  c.  3.  §11.  f  L.2.  c.  8.  §  1.  n.  1  &  2. 

t  la  the  original,  this  passage  from  Dion  Chrysostom  is  quoted  so  as  t<» 
mean,  that  ivar  is  most  frequently  DECLARED,  (bella  indicia  Ittl  TO  jrx«rov,  ut 
pluritnuni)  but  from  the  context  it  appears  evidently  to  have  been  an  error 
of  the  press.  The  words  of  Chrysostom,  are:  voKipot  a;  tVJ  TO  xKurov  'AKHPTKTOI 
ylyw»ia.t.  Wars  are  most  frequently  made  WITHOUT  a  public  declaration,  and 
so  our  author  translates  them  very  correctly  above,  page  7.  T. 

tB 


10  TREATISE  ON  THE  LAW  OF  WAR. 

with  so  much  glory  the  empire  of  the  Persians.  Even  at 
this  day,  as  far  as  I  have  been  able  to  learn,  none  but  the 
European  nations  declare  war;  nor  even  do  they  all  or 
always  do  it,  but  they  are  accustomed  so  to  do  after  the 
example  of  the  Romans,  for  no  other  reason  perhaps  than 
because  the  Romans  did  so  before  them.  For  such  was 
the  estimation  in  which  the  Romans  have  been  held 
among  the  nations  of  Europe,  that  not  only  their  laws, 
but  their  manners  and  customs  have  been  adopted  among  us, 
although  those  customs,  as  for  instance  that  of  declaring  war 
which  we  are  speaking  of,  differed  from  those  of  the  rest  of 
the  world.  Wherefore,  if  any  sovereign  of  Europe  should 
make  war  without  previously  declaring  it,  as  was  done  by 
S  Gustavus  Adolphus  upon  the  Germans  in  the  last  century,  he 
would  certainly  act  contrary  to  the  general  custom  of  Euro- 
pean nations,  but  none  would  say  that  he  acted  in  opposition 
to  the  law  of  nations,  except  those  who  call  by  that  name  every 
thing  which  they  see  done  in  their  own  country. 

But  let  us  consult  reason,  whose  authority  is  of  so  much 
weight  in  the  law  of  nations.  Reason,  as  I  have  before  said,  does 
not  require  any  other  formalities  than  that  we  should  demand 
in  a  friendly  manner  what  has  been  taken  from  us;  nor  per- 
haps will  it  even  require  that  amicable  demand;  because  all 
laws  permit  the  repelling  force  by  force,  nor  do  I  know  that 
any  solemnity  in  order  to  repel  force  is  known  to  the  law 
of  nations.  But  admitting  that  among  good  men  it  may  be 
proper  or  necessary  to  make  a'  previous  request;  yet  if  that 
should  be  denied,  wilWfc  be  prohibited  to  make  use  of  force? 
I  surely  do  not  prohibit  it,  though  Grotius  and  others  do,  un- 
less a  declaration  of  war  be  previously  made.  But  the  argu- 
ments which  are  commonly  made  use  of  in  support  of  the 
necessity  of  declaring  war  amount  in  fact  to  nothing.  That 
which  is  adduced  by  Gentilis  is  reprobated  by  Grotius  him- 
self,* while  he  gives  another,  which  I  have  already  quoted, 
and  which  if  not  the  worst  of  all  is  certainly  a  very  bad  one. 
When  two  sovereigns  commit  hostilities  against  each  other 
withouthavingdeclared  war,  can  we  doubt  thatitis  their  mutua) 
*  L  3.c.3.  §11. 


TREATISE  ON  THE  LAW  OF  WAR.  1] 

will  to  make  war?  If  we  cannot  doubt  it,  to  what  purpose  would 
their  declaration  be?  When  a  thing  is  public  and  notorious,  it  « 
certainly  requires  no  proof.  That  is  not  therefore  a  sufficient 
argument,  and  yet  Grotius  has  preferred  making  use  of  it  in 
order  to  deduce  the  necessity  of  declaring  war,  from  its  being 
commonly  done  among  European  nations,  though  he  well 
knew  that  that  was  not  sufficient  to  constitute  the  general 
law.  Reason  alone,  reason  is  the  soul  of  the  law  of  nations, 
and  if  we  take  her  for  our  guide  in  the  present  discussion,  no  W 
argument  will  be  found  to  prove  the  necessity  of  a  declaration 
of  war,  but  many  on  the  contrary,  which  I  have  adduced,  to 
shew  that  it  is  not  necessary. 

But  even  if  this  question  were  to  be  decided  by  the  cus- 
toms of  European  nations,  authorities  can  also  be  quoted  from 
that  source.  To  recur  back  to  the  precedents  of  ancient  times 
would  be  an  endless  task.  That  war  of  extermination  which 
was  carried  on  between  Spain  and  the  United  Provinces, 
from  the  time  of  the  foundation  of  our  republic  until  the 
year  1648,  was  begun  by  mutual  hostilities,  without  any 
public  declaration.  Because  therefore  no  such  declaration 
was  made,  will  the  legality  of  the  war,  of  the  victories  and  of 
the  peace  which  followed  in  1648  be  doubted?  I  do  not  think 
that  it  will.  But  the  states  of  Holland  seem  to  have  thought 
otherwise,  when  on  the  4th  of  March  1600  they  published  an 
edict  declaring  that  the  owners  of  the  ships  which  Philip  III. 
had  confiscated  in  Spain  in  1658  should  have  satisfaction,  be- 
cause the  Dutch  before  that  time  resorted  freely  to  Spain,  and 
those  ships  had  been  confiscated  without  any  previous  warn- 
ing. I  do  not  approve  of  this  edict,  for  who  could  justly 
have  required  the  king  of  Spain  to  declare  war,  when  the 
Dutch  since  the  year  1581  had  not  ceased  publicly  to  com- 
mit hostilities  against  him?  War,  in  fact,  properly  begins  from 
the  mutual  use  of  force,  not  to  speak  of  other  cases*  men- 
tioned by  the  publicists  which  fall  within  the  same  reason. 

In  the  preamble  of  this  edict,  as  well  as  in  the  edict  itself, 
the  states-general  add,  that  formerly,  that  is  to  say  prior  to  the 

*  Zouch,  De  Jure  inter  gentes,  part  2.  sect.  10.  §  1, 


12  TREATISE  ON  THE  LAW  OF  WAR. 


year  1598,  the  Belgians*  'were  allowed  a  free  intercourse  with 
Spain.  But  of  the  truth  of  this  fact  I  have  never  been  able  to 
satisfy  myself,  and  admitting  it  to  be  true,  I  cannot  see  how 
it  applies  to  the  justice  of  the  present  case,  as  I  shall  shew 
hereafter.  If  the  Belgians  thus  carried  on  a  free  trade  and  in- 
tercourse with  Spain,  it  could  not  be  by  force  of  the  laws  of 
war,  but  rather  by  the  negligence  of  the  magistrates.  Indeed 
it  is  stated  in  the  preamble  to  the  edict,  by  which  on  the  4th  of 
April  1586,  the  earl  of  Leicester,  with  the  advice  of  the  states- 
general  and  their  counsellors,  prohibited  the  United  Belgians 
from  trading  with  the  Spaniards,  that  the  king  of  Spain  had 
already  condemned  and  sold  Belgic  vessels,  both  in  Spain  and 
Portugal.  And  in  the  first  section  of  the  said  edict  of  1586, 
as  well  as  by  another  edict  of  the.  18th  of  July  in  the  same 
year,  the  earl  of  Leicester  actually  forbids  all  commercial  in- 
tercourse with  the  Spaniards.  It  is  true,  that  by  the  first  sec- 
tion of  the  edict  of  the  4th  of  August  following  he  restricted 
the  prohibition  to  trading  with  those  places  within  the  Belgic 
territory,  which  were  in  the  possession  of  Spain,  and  per- 
mitted carrying  on  trade  with  Spain  proper;  but  this  was  done 
for  no  other  cause  than  for  the  advantage  of  the  Belgic  mer- 
chants, which  brought  no  alteration  in  the  laws  of  war,  which 
could  not  be  changed  without  the  consent  of  the  Spaniards. 

Even  if  a  declaration  of  war  had  been  necessary,  it  would 
not  have  availed  the  Belgians  any  thing  to  prevent  the  con- 
demnation of  their  vessels.  For  what  if  the  Spaniards  in  that 
very  year  1598  had  solemnly  declared  war  against  the  Belgians, 
and  immediately  afterwards  condemned  their  vessels,  perhaps 
the  same  day?  They  might  have  done  this  conformably  to  the 
laws  of  war;  nor  indeed  are  the  Belgians  or  any  other  power, 
when  a  war  suddenly  breaks  out,  in  the  habit  of  giving  notice 
to  the  subjects  of  their  enemies  to  withdraw  their  effects  and 
property,  or  otherwise  that  they  shall  be  forfeited.  No  one 
ever  required  this;  on  the  contrary,  Tryphonius,  in  1.  12.  pr. 

*  Our  author,  when  referring  to  the  times  of  the  Dutch  revolution,  calls 
indiscriminately  Dutch  and  Belgians  those  Nether  landers,  who  were  in  insur- 
rection against  Spain.  Several  of  the  now  Belgic  provinces  were  at  times  in 
possession  of  the  insurgents.  T. 


TREATISE  ON  THE  LAW  OF  WAR.  13 

ff.  de  Capt.  &  Postlim.  Revers.,  lays  down  the  contrary  posi- 
tion. And  such  is  the  practice  of  all  nations,  unless  there  be  a 
special  convention  to  the  contrary,  which  is  sometimes  the 
case.  There  are  a  few  examples  of  similar  compacts.  In  the 
fourth  article  of  the  treaty  of  Utrecht  with  Muyden  and 
Weesp,*  of  the  1st  of  July  1463,  it  was  agreed  that  the 
peace  should  last  fourteen  da)'s,  after  we  the  said  city  and 
cities  shall  have  written  to  each  other*  within  which  fourteen 
days  it  shall  be  lawful  for  our  respective  subjects  to  withdraw 
their  goods  and  effects  from  the  territory  of  their  enemies. 
In  the  sixteenth  article  of  the  treaty  of  peace  between  the  king 
of  Portugal  and  the  States-general,  of  the  6th  August  1661, 
it  is  stipulated,  that  if  differences  shall  arise  between  the 
said  king  and  states,  it  is  so  to  be  declared,  and  within  two 
years  from  that  declaration  it  will  be  unlawful  to  do  an 
injury  to  the  property  of  the  subjects  of  either  party.  After  it 
had  been  agreed  in  the  year  1662  between  France  and  the 
states-general,  that  in  case  of  a  war  taking  place  the  subjects 
of  either  party  should  be  allowed  six  months  to  withdraw  their 
property  from  the  territory  of  the  other,  the  king  of  France 
having  declared  war  against  the  Dutch  in  the  year  1672 
issued  a  special  edict  declaring  that  the  convention  of  1662 
should  be  observed.  The  same  term  of  six  months  was 
granted  for  the  same  purpose  by  the  same  powers  to  each 
other  by  the  fifteenth  article  of  the  peace  of  Nimeguen^  of 
the  10th  of  August  1678,  nine  months  by  the  thirty-ninth 
article  of  the  marine  treaty  of  the  lOth  of  August  1678, 
nine  months  again  by  the  fourteenth  article  of  the  treaty  of 
peace  of  the  20th  of  September  1697,  and  again  nine  months 
by  the  thirty-sixth  article  of  the  treaty  of  peace  of  the  llth  of 
April  1713.  And  in  the  thirty-second  article  of*  the  treaty  of 
peace  between  England  and  the  states-general,  of  the  31st  of 
July  1667,  it  was  stipulated,  that  if  war  should  arise  between 
the  parties,  the  effects  of  their  respective  subjects  found  in  the 

*  Muyden  and  Weesp,  or  Wesop,  are  two  towns  of  South  Holland:  the 
former  is  situate  at  the  mouth  of  the  river  Vecht  (a  branch  of  the  Shine) 
and  the  latter  a  few  miles  above  it  on  the  same  river.  y 


14  TREATISE  ON  THE  LAW  OF  WAR. 

territories  of  each  other  should  not  be-  condemned,  but  six 
months  should  be  allowed  to  take  them  away.  If  these  exam- 
ples should  not  be  sufficient,  I  could  adduce  several  others 
mentioned  by  Zentgravius,  de  Orig.  Verit.  &  Oblig.  Jur.  Gent. 
art.  7.  §  9.  Where,  however,  there  do  not  exist  similar  conven- 
tions for  suspending  the  state  of  war,  whatever  others  may 
say,  hostilities  may  commence  immediately.  Grotius,  who 
requires  a  declaration,  does  not  require  any  interval  between 
it  and  the  beginning  of  hostilities.  See  1.  3.  De  Jure  B.  &  P. 
c.  3.  §  13.  Zouch  and  Zentgravius  are  of  the  same  opinion. 
Zouch,  de  Jur.  int.  gent,  part  1.  §  6.*  and  Zent.  d.  loc.  The 
king  of  Spain,  therefore,  might  in  the  year  1598  have  declared 
war.  and  immediately  afterwards  taken  the  Dutch  ships,  as 
there  was  no  convention  between  the  two  powers  to  the  con- 
trary, nor  indeed  could  there  be  any  between  that  sovereign 
and  a  people  whom  he  considered  as  his  subjects. 

Here  then  is  a  remarkable  instance  of  a  war  carried  on  for 
a  great  length  of  time  without  ever  having  been  declared. 
Indeed,  I  do  not  know  how  the  Belgians  could  have  required 
a  declaration  of  war  from  the  Spaniards,  when  they  themselves 
never  issued  any,  either  at  the  commencement  of  hostilities, 
or  when  they  were  resumed  after  the  expiration  of  truces. 
Nay,  even  admitting  that  such  a  declaration  was  indispen- 
sably required  by  the  law  of  nations,  the  Spaniards  might 
perhaps  have  objected  that  it  was  only  necessary  when  war 
took  place  between  independent  princes,  but  that  it  was  never 
used  in  a  civil  war,  in  which  case  it  was  perfectly  lawful  for  a 
sovereign  to  take  the  property  of  his  rebel  subjects.  But  I  do 
not  urge  this  argument.  It  is  sufficient  for  my  purpose  if  I 
make  it  appear  that  the  edict  of  the  4th  of  March  1600  was 
not  predicated  on  the  laws  of  war,  but  on  the  interest  of  the 
Dutch  merchants.  It  was  the  same  interest  which  influenced 
the  Hollanders  in  the  year  1639,  and  set  them  improperly  at 
variance  with  the  states-general,  in  another  case  which  was 
no  less  dependent  on  the  laws  of  war.  For  the  governor  of  the 

*  Our  author  here  quotes  Zouch,  §  3.  Q;  10.  without  referring1  to  the  part 
It  is  evidently  a  misquotation.  The  true  reference  (which  we  have  restored) 
is  to  part  1.  $  6.  T. 


TREATISE  ON  THE  LAW  OF  WAR.  15 

Canary  Islands  having  been  taken  by  treachery  and  brought 
into  this  country,  arid  the  states-general  being  desirous  of 
detaining  him  as  a  prisoner,  the  Hollanders  opposed  it;  but, 
says  Aitzema,*  merely  on  the  ground  of  its  being  detrimental 
to  their  trade.  For  my  part  I  think  that  they  might  well  have 
founded  their  opposition  on  the  merits  of  the  case  itself:  as 
this  was  a  much  more  shameful  act  than  the  condemnation  of 
the  Dutch  vessels  by  Philip  II.  in  1598;  for  although  an 
enemy's  property  may  be  taken  and  hostilities  may  be  com- 
mitted immediately  upon  a  declaration  of  war,  if  there  are  no 
treaties  to  the  contrary,  yet  it  is  in  no  case  lawful  to  betray  a 
friend.  The  Dutch  had  hitherto  been  admitted  to  trade  freely 
with  the  Canary  Islands,  and  there  was  on  both  sides  a  free 
commercial  intercourse.  A  Dutch  captain,  who  had  been  thus 
admitted  to  trade,  persuaded  the  governor  to  go  on  board  of 
his  vessel,  under  pretence  of  carrying  him  from  one  island  to 

*  Lib.  19.  As  this  writer  is  frequently  quoted  in  the  course  of  this  work, 
we  think  it  proper  to  give  some  account  of  his  writings  to  the  American 
reader.  LEO  van  AITZ.EMA  is  the  author  of  an  excellent  Chronicle  of  the 
events  which  took  place  during  the  middle  part  of  the  seventeenth  century, 
from  1621  to  1668.  This  work  is  published  in  six  thick  folio  volumes, 
(with  an  additional  volume  containing  political  tracts,)  and  contains  aa 
immense  collection  of  state  papers,  during  the  period  to  which  it  refers, 
which  are  connected  together  by  the  author's  narrative.  It  is  divided 
into  books,  each  book  containing  a  recital  of  the  public  events  and  a  copy 
of  the  public  documents  of  one  year.  It  has  been  ably  continued  on 
the  same  plan  by  L.  Sylvius,  in  four  folio  volumes,  down  to  the  peace 
of  Rysviick,  in  1697.  This  book,  as  well  as  its  continuation,  is  entitled  Saken 
van  Staet  en  Oorlogh,  (Of  matters  of  .State  and  War).  Unfortunately  it  is 
written  in  the  Low  Dutch  language,  which  is  understood  but  by  few  among1 
us.  A  translation  of  it  into  English  would  be  a  great  acquisition  to  litera- 
ture, and  prove  an  invaluable  mine  of  historical  knowledge.  From  the 
manner  in  which  the  public  documents  that  it  contains  are  connected  and 
introduced  by  short  historical  narratives,  it  is  superior  to  any  collection  of 
state  papers  that  has  ever  appeared.  It  combines  the  advantages  of  such 
a  collection  with  those  of  a  chronicle  of  the  times,  which,  we  believe,  are 
not  to  be  found  together  in  any  other  work  ^xtant.  There  are  two  editions  of 
Jitzema,  one  in  folio,  the  other  in  quarto.  The  latter  is  that  from  which 
our  author  has  taken  his  quotations,  to  the  pacing  of  which  he  refers. 
Being  possessed  only  of  die  folio  edition,  we  have  thought  it  best  to  refer 
merely  to  the  book  in  which  each  particular  passage  is  to  be  found.  T. 


16  TREATISE  ON  THE  LAW  OF  WAR. 

another,  instead  of  which  he  carried  him  to  Rotterdam  in 
order  to  make  him  a  prisoner.  This  appears  to  me  to  be 
precisely  the  same  as  going  to  an  enemy  under  the  protection 
of  a  flag  of  truce,  with  an  intention  however  to  seize  upon 
the  first  favourable  opportunity  to  take  away  his  life. 

But  let  us  pass  on  to  other  wars  commenced  and  carried  on 
without  any  declaration.  It  is  well  known  that  when  Gustavus 
Adolphus  invaded  Germany,  the  emperor  Ferdinand  II.  com- 
plained that  he  had  done  it  without  a  previous  declaration  of 
war,  upon  which  Gustavus  replied  that  the  emperor  himself 
had  before  invaded  Prussia  without  any  such  declaration.  It 
is  thus  that  princes,  though  bound  by  no  positive  law,  enforce 
upon  each  other  the  law  of  reciprocity.  The  same  thing  hap- 
pened in  the  year  1657;  for  the  French,  in  the  midst  of  peace, 
having  detained  the  goods  of  Dutch  subjects  which  they  had 
in  their  own  country,  the  Dutch  detained  in  like  manner  the 
goods  of  French  subjects.  See  the  edict  of  the  states  of  Hol- 
land of  the  26th  April,  and  the  decree  of  the  states-general  of 
the  6th  of  May  of  that  year.  Indeed  the  states-general  lay  it 
down  in  their  said  decree  that  such  a  detention  among  friends 
is  unlawful,  unless  for  a  just  cause,  and  unless  there  has  been 
a  previous  demand  and  denial  of  justice.  But  no  prince  will 
detain  the  property  of  foreigners,  unless  for  a  cause  which  he 
himself  thinks  just.  Certainly  I  would  admit  of  a  demand, 
because  a  cause  of  complaint  cannot  otherwise  be  known;  but 
since  the  common  use  of  resident  ambassadors,  which  now 
obtains,  there  can  be  but  few  cases  of  injury  of  which  a  com- 
plaint is  not  made;  for  ambassadors  are  in  the  habit  of  making 
frequent  representations,  if  the  smallest  thing  happens  by 
which  their  sovereign  may  be  offended.  But  let  us  proceed. 

We  read  of  the  Portuguese,  that  in  the  year  1657  they 
seized  the  ships  of  the  Dutch  before  any  war  declared  or 
hostilities  commenced.  And  in  the  war  which  took  place  be- 
tween the  king  of  England  and  the  states-general,  which  ended 
in  the  peace  of  1667,  the  states-general,  in  the  letter  which 
they  wrote  to  the  king  of  England  on  the  16th  of  September 
1666,  complained  that  a  great  deal  of  property  was  taken  from 
them  and  their  subjects;  unlawfully,  said  they,  because  war 


TREATISE  ON  THE  LAW  OF  WAR.  17 

had  not  been  declared.  But  of  this  the  reader  will  judge  from 
the  reasonings  which  I  here  adduce.  Louis  XIV.  also,  in  the 
year  1667,  did  not  declare  war  against  the  Spaniards,  and 
yet,  as  it  were,  without  breaking  the  peace,  he  ordered  the 
king  of  Spain  to  be  expelled  from  dominions  that  he  was  pos- 
sessed of,  being  of  opinion  that  there  was  no  need  of  a  decla- 
ration to  take  what  belonged  to  him.  Now,  if  a  declaration  is 
necessary  in  any  case,  who,  I  ask,  will  put  up  with  such  a 
pretext?  For  to  make  war  is  nothing  else  than  to  take  forcibly 
from  an  unwilling  prince  or  people  what  we  think  to  be  justly  ' 
due  to  us.  There  is  a  long  complaint  on  this  subject  in  the 
edict  of  the  states-general  against  France,  of  the  9th  of  March 
1689,* because  the  same  king  of  Francehad,  in  the  year  1688, 
without  any  declaration  of  war,  detained  the  Dutch  subjects 
and  their  ships  and  merchandize,  and  afterwards,  imme- 
diately on  the  declaration  of  war  being  published  at  Paris,  he 
took  up  arms,  and  seized  on  the  goods  of  Dutch  subjects. 

The  first  part  of  this  complaint  was  indeed  just;  for  that 
detention  was  a  violation  of  the  fifteent,h  article  of  the  peace 
of  Nimeguen  and  of  the  thirty-ninth  article  of  the  Marine 
treaty  of  the  10th  of  August  1678,  the  period  stipulated  by 
those  several  instruments,  as  above  mentioned,  for  carrying  ofi" 
the  effects  of  the  respective  parties,  not  being  expired,  so  that 
the  state  of  war  was  in  this  respect  suspended.  It  was  there- 
fore an  act  of  injustice  to  capture  such  goods  as  might  have 
been  carried  off  within  the  limited  time.  As  to  other  goods, 
there  was  no  treaty  concerning  them,  and  therefore  I  doubt 
whether  the  second  part  of  the  complaint  was  equally  well 
founded.  But  however  this  may  be,  the  instances  which  I 
have  adduced  are  sufficient  to  prove  that  th'ere  is  no  reason 
why  we  should  think  so  favourably  of  European  manners,  as 
to  refer  to  them  for  a  convincing  proof  of  the  necessity  of 
declaring  war. 

*  Sylv.  contin,  of  Aitzema,  b.  25. 


tc 


18  TREATISE  ON  THE  LAW  OF  WAR. 


CHAPTER  III. 

Of  War  considered  as  between  Enemies. 

IT  may  be  said  that  a  state  of  war  ought  rather  to  exist  among 
princes  for  whose  interest  alone  in  most  cases  it  is 
carried  on,  than  among  their  subjects,  who,  unless  the  war  is 
made  for  their  own  quarrel,  are  not  actuated  by  so  hostile  a 
spirit.  Yet  when  hostilities  are  to  be  waged  against  another 
nation,  no  one  can  expect  that  we  shall  compliment  our  ene- 
mies and  wish  them  well.  The  grave  majesty  of  the  Roman 
people  displayed  itself  in  the  conduct  of  Caius  Popilius,  who, 
although  he  was  saluted  by  king  Antiochus,  then  his  enemy, 
refused  to  return  the  salutation  while  the  war  continued.  So 
we  are  told  by  Plutarch,  Apophthegm,  p.  m.  364.:  Livy,  b. 
45.  c.  12.,  and  Polyb.  Excerp.  Legat.  c.  92.,  relate  likewise, 
that  Antiochus  offered  his  hand  to  Popilius,  who  refused  to 
take  it. 

The  Roman  consuls  however,  in  their  letter  to  king  Pyr- 
rhus,  with  whom  they  were  at  war,  as  related  by  Gellius, 
b.  3.  c.  8.,  wished  him  health.  This  perhaps  was  necessitated 
by  the  state  of  Roman  affairs  at  that  time,  but  so  addicted 
to  flattery  has  the  last  century  been,  as  well  as  the  present, 
that  princes  omit  none  of  the  usual  adulatory  forms  even  in 
the  midst  of  war.  Hence  enemies  now  wish  to  each  other 
every  kind  of  prosperity,  call  each  other  friends,  and  are 
almost  sorry  for  their  mutual  losses.  This  is  exemplified  in  the 
letters  of  the  states-general  to  the  king  of  England,  of  the  10th 
of  July,*  16th  September, r  and  26th  of  November,  1666; 
and  again  in  the  letters  of  the  king  of  England  to  the  states- 
general  of  the  4th  of  August, \  and  4th  of  October  1666.  Al- 
though the  two  nations  were  at  that  time  at  open  war,  and  bent 
upon  mutual  injury,  yet  the  states-general  write  in  their  said 
letter  of  the  10th  of  July  1666,  que  les  offices  de  civilite  ne 

*  Aitz.  b.  46.         f  Aitz.  ibid.        4-  Aitz.  ibid. 


TREATISE  ON  THE  LAW  OF  WAR.  19 

sont  pas  incompatibles  avec  les  devoirs  <de  la  guerre, — that 
an  interchange  of  civilities  is  not  incompatible  with  the  duties 
of  war.  And  the  king  of  France,  in  the  year  1666,  who  was 
then  at  war  with  the  king  of  England,  sent  an  ambassador 
to  condole  with  him  on  the  conflagration  of  the  city  of 
London.  It  is  certainly  noble  to  practise  the  duties  of  humani- 
ty, clemency,  piety  and  other  magnanimous  virtues  in  the 
midst  of  war;  but  I  think  it  disgusting  to  trifle  with  mere 
words,  for  what  else  is  it  than  trifling  when  you  express 
sorrow  for  the  conflagration  of  a  city  to  which  you  would 
wish  to  set  fire  yourself?. 

As  the  conqueror  may  lawfully  do  any  thing  that  he  pleases 
with  the  vanquished,  no  one  can  doubt  his  having  on  that 
account  over  him  the  power  of  life  and  death.  There  are  so 
many  instances  on  record  of  the  exercise  of  this  right  amongst 
all  nations  in  ancient  times,  that  a  large  book  would  not  be 
sufficient  to  contain  an  account  of  them  all;  and  the  publicists 
have  already  exercised  their  industry  upon  this  subject.  But 
although  the  right  of  killing  has  almost  become  obsolete,  yet 
it  is  to  be  attributed  merely  to  the  will  and  to  the  clemency 
of  the  victor;  nor  can  it  be  denied  but  that  it  might  be  exer- 
cised even  at  this  time,  if  one  should  chuse  to  avail  himself  of 
his  right.  That  there  still  exist  some  remains  of  this  right 
is  in  full  proof;  for  in  this  sense  alone  is  to  be  taken  and  on 
this  ground  alone  is  to  be  defended  the  edict  of  the  states- 
general  of  the  1st  of  October  1589,  which  inflicted  the  penalty 
of  death  on  those  who  should  be  found  with  the  traitors  of 
Gertruydenberg;  and  also  their  other  edict  of  the  24th  Februa- 
ry 1696,  by  which  they  inflicted  the  same  penalty  on  those 
enemies  who  should  approach  the  shore  nearer  than  the 
buoys,  or  should  land  on  the  coast  for  the  sake  of  plundering. 

One  who  is  in  company  with  his  fellow  soldiers  is  not 
guilty  of  any  crime  by  the  laws  of  war,  though  they  be 
traitors,  nor  is  he  who  invades  a  hostile  shore  in  hopes  of 
making  booty.  Drive  him  away  if  you  can,  but  if  you  cannot, 
why  will  you  treat  him  differently  from  other  enemies?  It  is 
on  the  ground  of  the  same  right  of  life  and  death  that  I  de- 
fend the  conduct  of  the  Dutch*  who  sometimes  hanged  the 
*  Aitz.b.  6. 


20  TREATISE  ON  THE  LAW  OF  WAR. 

Spaniards  because  they  were  not  ransomed,  for  so  it  is  re- 
lated to  us.  It  is  lawful  to  hang  prisoners;  but  if  it  were  not 
lawful,  there  is  no  reason  or  authority  for  doing  it  because 
they  are  not  ransomed,  but  the  contrary  is  practised,  as  will 
be  seen  hereafter. 

To  the  right  of  killing  our  enemies  has  succeeded  that  of 
making  them  slaves,  which  was  formerly  exercised  during 
many  ages.  But  this  custom  of  making  slaves  of  prisoners 
has  now  fallen  into  disuse  among  most  nations,  in  conse- 
quence of  the  improvement  of  their  manners.  Cujacius,  in- 
deed has  said,  Comment,  post,  ad  1.  5.Jf.  de  "Just,  et  jfur., 
that  even  among  Christians,  prisoners  were  still  made  slaves 
of ;  but  that  their  servitude  was  milder  than  formerly.  He  how- 
ever does  not  prove  his  position  otherwise  than  by  the  right 
of  redeeming.  But  why  should  the  custom  of  redeeming 
prisoners  and  their  detention  until  they  are  redeemed  be  con- 
sidered as  a  species  of  servitude,  any  more  than  for  instance 
the  imprisonment  of  foreign*  debtors,  until  they  pay  what  they 
owe  to  us?  For  in  those  cases  such  debtors  are  never  dis- 
charged, unless  they  pay  the  money  due,  or  give  security  for 
it,  precisely  as  in  the  case  of  prisoners  of  war.  Nay,  prisoners 
of  war,  if  they  are  not  redeemed,  are  very  often  released,  even 
without  a  ransom.  Thus  the  supreme  military  council  of  the 
United  Provinces  on  the  14th  of  December  1602,  permitted 
the  release  of  twenty-four  prisoners,  taken  at  the  siege  of 
Boisleduc,  because  they  were  not  redeemed,  and  lest  those 
unfortunate  wretches  should  perish  by  the  miseries  of  a  gaol. 
It  would  have  been  very  unexpected  indeed,  and  quite  con- 
trary to  the  manners  which  now  prevail,  if  the  council  had 
ordered  those  prisoners  to  be  either  hanged  or  made  slaves  of. 
Hence,  when  the  rhingrave  of  Solms,}  who  served  in  the  Bri- 
tish army  in  Ireland  in  the  year  1690,  had  ordered  prisoners 
to  be  transported  to  America,  there  to  be  made  slaves,  the 

*  In  Holland,  foreigners  alone  and  transient  persons,  who  have  no  domi- 
cile in  the  country,  are  imprisoned  for  debt  T. 
Aitz.  b.  30. 


TREATISE  ON  THE  LAW  OF  WAR.  21 

duke  of  Berwick*  gave  him  notice,  that  if  this  should  be  done, 
all  the  prisoners  that  he  should  make  would  be  sent  to  the 
galleys  in  France.  But  as  slavery  itself  has  fallen  entirely  into 
disuse  among  Christians,  we  do  not  inflict  it  upon  our  prisoners. 
We  may  however,  if  we  please,  and  indeed  we  do  sometimes 
still  exercise  that  right  upon  those  who  enforce  it  against  us. 
Therefore  the  Dutch  are  in  the  habit  of  selling  to  the  Spa- 
niards as  slaves,  the  Algerines,  Tunisians  and  Tripolitans, 
whom  they  take  prisoners  in  the  Atlantic  or  in  the  Mediterra- 
nean; for  the  Dutch  themselves  have  no  slaves,  except  in  Asia, 
Africa  and  America.  Nay,  in  the  year  1661,  the  states-ge- 
neral gave  orders  to  their  admiral  to  sell  as  slaves  all  the 
pirates  that  he  should  take.  The  same  thing  was  done  in  the 
year  1664.f 

To  the  slavery  of  prisoners  succeeded  the  custom  of  ex- 
changing them  according  to  their  respective  grades  and  ranks, 
and  detaining  them  until  redeemed.:}:  And  the  necessity  of  re- 
deeming them  is  sometimes  expressed  in  treaties,  with  a  spe- 
cified sum,  according  to  the  dignity  of  each  person  that  may 
be  taken,  which  sum  being  paid,  there  is  an  *nd  of  that  sum- 
mum  jus  which  belongs  to  the  victors  over  their  prisoners. 
Among  the  Romans  the  right  of  capture  was  exercised  upon 
those  who  at  the  breaking  out  of  the  war  were  found  in 
each  other's  territory,  1.  12.  ff.  de  Capt.  et.  Postlim.  Revers.; 
but  in  modern  times  it  rarely  takes  place,  although  the  right 
still  exists.  Nay,  Louis  XIV.  himself,  king  ofFrance,  when  on 
the  26th  of  January  1666,  he  had  declared  war  against  Eng- 
land by  sea  and  land,  and  interdicted  all  commerce  between 

*  The  duke  of  Berwick,  a  natural  son  of  James  II.  of  England,  com- 
manded at  that  time  the  French  army  in  Ireland.  He  was  afterwards  com- 
mander in  chief  of  the  French  forces  in  Spain,  during1  the  succession  war, 
•while  the  British  troops  were  commanded  by  the  earl  of  Galway,  a  French- 
man. T. 

f  Aitz.  b.  41.  44. 

|  We  are  informed  by  the  public  papers  that  by  a  late  cartel  which  has 
been  settled  between  the  British  and  French,  sixteen  French  prisoners  are 
to  be  given  for  every  nine  British,  until  the  whole  are  regularly  exchanged; 
it  having  been  ascertained  that  the  number  of  French  prisoners  in  England 
exceeds  that  of  the  English  in  France  in  that  proportion.  T. 


22  TREATISE  ON  THE  LAW  OF  WAR. 

the  two  nations,  in  consequence  of  which  the  English  who 
were  in  France  were  in  fears  for  their  persons  and  property, 
issued  on  the  1st  of  February  1666,  another  edict,  telling 
them  that  their  fears  were  vain;  for  that  by  the  edict  of 
the  26th  of,  January  1666,  he  had  merely  declared  war 
against  those  of  the  English  who  should  be  found  thereafter  on 
the  high  seas,  or  who  should  commit  hostilities  on  the  French 
territory,  but  not  against  those  private  individuals  who  had 
established  their  domicil  in  France;  that  however,  it  was  his 
pleasure  that  English  subjects  residing  in  France,  and  who 
were  not  naturalized,  should  depart  within  three  months,  and 
go  whithersoever  they  should  please. 

But  that  this  is  to  be  attributed  solely  to  humanity,  if  there 
exist  no  treaties  suspending  the  state  of  war,  I  have  endea- 
voured to  shew  in  the  preceding  chapter.*  Because,  however, 
there  are  many  such  treaties,  the  laws  of  war  are  seldom 
exercised  upon  those  who  have  come  in  time  of  peace  to  a 
country  where  war  afterwards  has  arisen,  and  have  been 
found  there  at  the  time  of  the  war's  taking  place.  But  after 
the  expiration  of  the  time  which  has  been  granted  to  them 
^  {  either  by  humanity  or  by  treaty,  those  who  remain  in  the 
.  country,  or  come  into  it  without  permission,  may  lawfully 
be  arrested.  On  this  principle,  the  states-general  on  the  4th 
of  April  1674  issued  an  edict,  that  if  any  enemies  should  tarry 
within  the  United  Provinces  or  the  dominions  of  the  states- 
general,  without  having  obtained  liberty  to  come,  they  should 
be  arrested,  and  not  be  restored  until  redeemed. 

But  although  the  right  of  killing  prisoners  has  fallen  into 
disuse,  it  is  made  a  question,  however,  whether  it  may  not 
be,  without  the  least  imputation,  exercised  upon  those  who 
defend  themselves  too  obstinately;  and  there  are  some  who 
maintain  the  affirmative.  But  I  think  it  would  be  a  shameful 
action,  unless  the  weak  and  defenceless  girl,  who  obstinately 

*  On  this  principle,  probably,  the  first  consul  of  France  arrested  and  de- 
tained, without  any  previous  notice,  all  the  British  subjects  who  were  found 
in  France  at  the  commencement  of  the  present  war.  The  principle  may  be 
. .  correct;  but  if  it  is,  it  must  be  acknowledged  that  the  summumjut  of  war 
is  very  near  akin  to  barbarism.  T. 


TREATISE  ON  THE  LAW  OF  WAR.  23 

resists  the  attempts  of  a  libertine,  should  also  be  deemed 
deserving  of  punishment. 

Every  thing  is  lawful  against  an  enemy,  but  nothing  can  be 
more  cruel  than  to  punish  him  for  his  courage.  Nay,  we 
even  admire  the  courage  of  our  enemies,  and  we  are  indignant 
at  their  cowardice.  I  remember  to  have  read,  that  the  Algerine 
corsairs  tore  to  pieces  and  loaded  with  every  kind  of  igno- 
miny a  certain  captain  who  had  meanly  given  up  his  vessel 
when  she  was  in  a  condition  very  fit  for  defence,  and  had 
only  stipulated  for  the  liberty  of  his  own  person.  For  even 
with  enemies  fortitude  is  glorious  and  cowardice  contemptible. 
If  you  wish  to  read  what  others  have  written  upon  this 
subject,  you  maybe  gratified  by  reading  Gehtilis,  de Jure  Belli, 
1.  2.  c.  16.;  Grotius,  deJ.B.acPac.  1.  3.  c.  4.  §  13.,  nndZouch> 
de  Jur.  Fee.*  part  2.  §  10.  Q.  9. 

We  have  laid  down  what  it  is  lawful  to  do  with  living 
enemies,  but  what  shall  we  say  of  the  remains  of  those  who  are 
dead?  In  ancient  times  their  bodies  were  abandoned  to  beasts 
and  birds  of  prey,  but  now  the  conquerors  either  bury  them 
themselves,  or  deliver  them  up  to  be  buried.  Sometimes  even 
more  is  done  for  the  sake  of  humanity.  On  the  1 6th  of  Sep- 
tember 1666,  the  states-general  caused  the  body  of  an  English 
admiral  which  was  in  their  power  to  be  embalmed,  and  sent 
it  over  to  England.  They  had  before,  viz.  on  the  10th  of 
July  1666,  written  to  the  king  of  England,  to  know  whether 
he  wished  that  corpse  to  be  sent  thither  or  be  buried  in 
Holland,  and  on  the  4th  of  August  1666  he  chose  the  former. 
The  French  did  the  same  thing  in  the  year  1692. 

There  can  be  no  doubt  but  that  from  the  nature  o£.  war 

<  s£ 

itself,  all  commercial  intercourse  ceases  between  enemies. 
For  to  what  purpose  will  trade  be  carried  on,  if,  as  is  clearly  }v 
the  case,  the  goods  of  enemies  brought  into  our  country  are 
liable  to  confiscation?  And  if  he  who  having  obtained  the 
right  of  killing  his  enemy  should  go  with  merchandize  into  the 
hostile  country,  and  the  enemy  should  kill  him  in  the  midst  of 

*  This  work  is  sometimes  referred  to  by  the  title  De  Jure  Feciali,  some- 
times by  that  De  Jure  inter  gentes,  which  is  indifferent,  as  it  bears  botk 
titles.  T. 


24  TREATISE  ON  THE  LAW  OF  WAR. 

commercial  intercourse,  would  you  think  it  justly  done?  But 
every  commercial  intercourse  ceases.  Hence  in  declarations 
of  war  commerce  with  the  enemy  is  prohibited,  and  it  is  often 
done  by  subsequent  edicts.  By  the  eleventh  section  of  the 
edict  of  the  earl  of  Leicester  of  the  4th  of  April  1586,  inter- 
dicting trade  with  the  Spaniards,  it  is  enacted  that  those  who 
should  carry  on  such  commerce  contrary  to  that  edict  should 
be  hanged  and  their  ships  and  goods  confiscated,  .if  they  were 
subjects,  but  if  foreigners,  they  should  only  be  punished  by 
the  confiscation  of  their  ships  and  merchandize.  The  same 
was  enacted  by  the  twelfth  section  of  the  edict  of  the  said  earl 
of  the  4th  of  August  1586.  And  by  the  thirteenth  section  of  the 
edict  of  the  4th  of  April,  and  the  fourteenth  of  that  of  the  4th 
of  August,  the  intention  to  carry  on  trade  with  the  enemy  was 
punished  in  the  same  manner  as  the  fact  itself,  and  thus  the 
states  of  -Holland  had  formerly  enacted  on  the  27th  of  July 
1584.  It  was  moreover  added  to  all  those  edicts,  that  there 
should  be  no  prescription  or  limitation  against  the  charge  of 
having  traded  with  the  enemy,  whether  they  were  taken  in  the 
fact  or  not.  And  by  the  same  edict  of  the  states  of  Holland 
of  the  27th  of  July  1584,  the  pecuniary  penalties  which  it 
inflicts  were  to  be  recovered  not  only  from  the  delinquent  but 
from  his  heirs,  which  I  do  not  believe  to  be  conformable  to 
the  Roman  law:  for  the  offence  provided  against  by  these 
edicts  does  not,  if  we  will  be  candid,  amount  to  the  crime  of 
treason,  but  is  a  particular  species  of  offence,  to  which  one  is 
instigated  by  cupidity  and  the  love  of  gain  rather  than  by  a 
^reasonable  intent. 

Bflt  although  trading  with  the  enemy  be  not  specially  pro- 
hibited,  yet  it  is  forbidden  by  the  mere  operation  of  the  law 
of  war.  Declarations  of  war  themselves  sufficiently  shew  it; 
for  they  enjoin  on  every  subject  to  attack  the  subjects  of  the 
other  prince,  seize  on  their  goods,  and  do  them  all  the  harm  in 
theirpower.  The  utility,  however,  of  merchants,  and  the  mutual 
wants  of  nations,  have  almost  got  the  better  of  the  law  of 
war  as  to  commerce.  Hence  it  is  alternately  permitted  and 
forbidden  in  time  of  war,  as  princes  think  it  most  for  the 
interest  of  their  subjects.  A  commercial  nation  is  anxious  to 


TREATISE  ON  THE  LAW  OF  WAR.  25 

trade,  and  accommodates  the  laws  of  war  to  the  greater  or 
lesser  want  that  it  may  be  in  of  the  merchandizes  of  others. 
Thus  sometimes  a  mutual  commerce  is  permitted  generally; 
sometimes  as  to  certain  merchandizes  only,  while  others  are 
prohibited,  and  sometimes  it  is'prohibited  altogether.  But  in 
whatever  manner  it  may  be  permitted,  whether  generally  or 
specially,  it  is  always,  in  my  opinion,  so  far  a  suspension  of 
the  laws  of  war.  And  in  this  manner,  there  is  partly  war  and 
partly  peace  between  the  subjects  of  both  princes.*  The  herring 
fishery  was  permitted  on  both  sides  by  the  edicts  of  the  French 
and  Dutch  of  the  year  1536,  and  formerly  by  the  edict  of  the 
latter  of  the  22d  of  December  1552.  To  which  is  to  be  added, 
what  was  done  during  the  whole  of  the  Spanish,  Portuguese 
and  English  war,  in  the  years  1653, 1665  and  1672,  and  also 
during  the  French  war  in  the  years  1672,  1689  and  1702, 
for  it  would  be  too  long  to  commemorate  every  thing. 

It  is  a  question  whether  our  friends  are  to  be  considered  as 
enemies,  when  they  live  among  the  latter,  say  in  a  town  which 
they  occupy.  Petrinus  Bellus,  de  Re  Milit.  part  2.  tit.  11.  n. 
5.,  thinks  that  they  are  not.  Zouch,  de  Jure  Fee.  part  2.  §  8.  Q. 
4.,  gives  no  opinion.  For  my  part  I  think  that  they  must  also' 
be  considered  as  enemies,  certainly  as  to  the  goods  which  they 
have  within  the  hostile  territory,  and  therefore  those  goods 
may  properly  be  taken  by  us  by  the  law  of  war,  if  they  have 
been  before  taken  by  our  enemies.  We  may  lawfully  take  all 
that  belongs  to  the  enemy,  and  those  goods  are  a  part  of  the 
enemy's  dominion,  which  as  they  may  be  useful  to  them,  may 
be  hurtful  to  us.  But  if  the  goods  of  friends  are  within  our 
territory,  although  their  owners  may  be  within  that  of  the 
enemy,  being  detained  there  as  prisoners  by  the  law  of  war, 
I  would  then  speak  differently;  because  it  is  true  that  these  are 
not  th"e  enemy's  goods,  nor  can  they  be  at  all  useful  to  him. 
Again,  as  we  are  to  do  to  our  enemies  all  the  harm  that  we  can, 

*  How  is  it,  when,  as  in  the  present  European  war,  the  belligerents  trade 
with  each  other,  and  prohibit  neutrals  from  trading  with  their  respective 
enemies?  According  to  our  author's  opinion,  it  seems  that  such  belligerents 
are  so  far  at  peace  with  one  another,  and  at  war  with  the  neutral  nations.  T-. 

to 


26  TREATISE  ON  THE  LAW  OF  WAR. 

why  shall  we  not  take  from  them  goods  which  they  themselves 
have  occupied  by  the  law  of  war,  and  which  they  make  use  of  as 
of  their  own?  I  know  upon  whatprinciple  others  are  of  adifferent 
opinion.*  They  say  that  our  friends,  although  they  are  among 
our  enemies,  yet  are  not  hostilely  inclined  against  us;  for  if 
they  are  there,  it  is  not  from  their  choice,  and  the  quo  ammo 
only  is  to  be  considered.  But  the  thing  does  not  depend  only 
on  the  quo  ammo;  for,  even  among  the  subjects  of  our 
enemy,  there  are  some,  however  few  they  may  be,  who  are  not 
hostilely  inclined  against  us;  but  the  matter  depends  upon  the 
law,  because  those  goods  are  with  the  enemy,  and  because 
they  are  of  use  to  them  for  our  destruction. 

*  Our  author  here  distinguishes  between  the  goods  of  a  friend  which  arc 
within  our  territory,  while  the  friendly  owner  is  a  prisoner  with  the  enemy, 
and  those  which  having  been  captured  by  the  enemy,  as  well  as  the  person 
of  the  owner,  are  retaken  by  us.  The  latter,  he  contends,  are,  though  the 
former  are  not,  liable  to  confiscation.  T 


TREATISE  ON  THE  LAW  OF  WAR.  27 


CHAPTER  IV. 

Of  the  Capture  of  movable  property,  and  particularly  of  Ships. 

\  ~\  7"E  have  in  the  former  chapters  treated  of  the  persons  of 
*  *  enemies,  we  shall  now  speak  of  their  goods  and  actions. 
It  is  evident  that  the  enemy's  property,  whether  movable  orA< 
immovable,  may  be  lawfully  taken.  To  whose  benefit  the  cap- 
ture enures,  whether  to  the  private  captors  or  to  the  state,  I 
shall  not  now  examine,  as  I  am  to  consider  this  subject  in  the 
20th  chapter.  But  I  shall  at  present  attend  to  another  ques- 
tion, which  is  not  less  important  and  which  occurs  every  day, 
From  what  time  is  property  changed  by  capture?  I  shall  not 
distinguish  here  between  the  different  species  of  personal  pro- 
perty; whether  a  man  be  taken,  or  a  ship,  or  merchandize,  or 
furniture,  or  any  thing  else  which  may  be  properly  the  object 
of  capture.  By  the  Roman  law,  as  Grotius  very  properly  ob- 
serves, the  things  taken  are  said  to  become  the  property  of 
the  captors,  when  they  are  carried  intra  prcesidia,*  for  which 
doctrine  there  is  no  other  reason,  but  that  now  every  hope 
of  pursuing  and  recovering  the  thing  taken  is  at  an  end. 
"  Whence,"  says  the  same  author,|  "  it  seems  to  follow, 
that  ships  and  other  things  taken  on  the  high  seas,  are  con- 
sidered as  effectually  captured,  when  they  have  been  carried 
into  a  port  or  harbour,  or  in  a  place  where  the  whole  fleet 
is,  for  now  their  recovery  begins  to  be  despaired  of.  But," 
he  adds,  "  by  the  modern  law  introduced  among  European 
nations,  such  things,  in  order  to  be  considered  as  captured, 
must  have  been  twenty-four  hours  in  the  power  of  the  enemy." 
Which  doctrine  he  applies  in  his  notes  to  those  things  which 

*  Grot.  De  J.  B.  ac  P.  1.  3.  c.  6.  §  3.  n.  1.  f  Ib»d-  n,  2 


23  TREATISE  ON  THE  LAW  OF  WAR. 

are  taken  upon  land.  Zouch  has  stated  Grotius's  doctrine  very 
fairly,*  and  Loccenius*  has  done  the  same.  What  Grotius 
says  of  the  doctrine  of  twenty-four  hours,  that  it  is  now 
observed  among  all  nations,  without  any  distinction,  whether 
a  captured  ship  has  been  carried  or  not  into  a  port  of  the  cap- 
tors, the  attorney-general  in  the  court  of  admiralty  of  Amster- 
dam, has  formerly  answered,^:  and  others  are  of  the  same 
opinion. 

But  I  never  have  been  able  to  find  that  this  custom  was  ob- 
served. I  have  found,  indeed,  that  the  military  judges  deci- 
ded thus  on  the  24th  of  December  1624,§  and  also  at  another 
time,  but  of  what  weight  is  the  decision  of  men,  mostly  ig- 
norant of  law,  who  either  have  not  been  guided  by  any 
authority  or  perhaps  have  been  seduced  by  that  of  Grotius. 
.  What  I  shall  say  in  this  and  the  next  chapter  will  abundantly 
prove  that  this  custom  is  repugnant  to  the  laws  and  manners 
of  the  United  Provinces.  I  know,  that  in  the  year  1631,  the 
ambassador  of  the  states-general  in  England^  requested  the 
states-general  to  sanction  by  their  authority  that  principle  of 
jurisprudence,  which  vests  the  property  in  a  prize  after  twen- 
ty-four hours' just  possession;  but  I  do  not  find  that  the  states 
ever  did  so.  It  is  indeed  contrary  to  all  reason;  for  if  you  con- 
sider the  thing  by  the  mere  light  of  common  law,  the  true 
reason  of  a  change  of  property  consists  in  a  real  possession. 
But  a  real  possession  is  that  which  may  be  safely  retained. 
Then  what  signify  the  twenty-four  hours,  if  there  may  be  a 
real  possession  within  that  time,  and  if  on  the  contrary  a  pos- 
session may  even  continue  longer  and  not  be  real?  Certainly  it 
has  been  impossible  to  lay  down  a  general  rule  upon  this  sub- 
ject, on  account  of  the  great  variety  of  cases  that  may  happen; 
but  every  case  is  to  be  considered  by  itself,  and  from  every  case 
it  will  result,  that  the  property  of  the  thing  taken  will  not  vest  in 
the  captor,  unless  he  is  able  to  keep  and  defend  it.  Things 
taken  in  war,  says  the  digest,  belong  to  him  who  has  first  taken 
possession  of  them.  L.l.§  \.ff'.deAcquir. velAmitt.rer.  Possess. 

*  De  Jure  Fee.  part  2.  §  8.  Q.  1. f  De  Jure  Marit.  1.  2.  c.  4.  n.  4. 

i  C'.nsil.  Belg.  vol.  2.  Cons.  66. §  Consil.  Holland,  vol.  2.  Cons.  151 

i:  Ait/  I  11. 


TREATISE  ON  THE  LAW  OF  WAR.  29 

And  he  is  not  considered  as  having  the  possession  of  a  thing, 
who  is  not  able  to  retain  it.  L.  22.^  Eod.  Such  is  the  opipion 
of  the  most  eminent  jurists,  which  is  dictated  by  the  law  of 
nations  itself.  When,  however,  we  have  such  a  possession  that 
we  may  or  may  not  retain  the  thing  taken,  the  variety  of 
cases  is  such,  as  I  have  said,  that  it  is  not  possible  to  give  any 
definition.  We  may,  however,  be  considered  as  having  a 
firm  possession,  when  we  have  carried  the  thing  taken  intra 
prcesidia,  to  use  the  language  of  the  Roman  law.  By  prcesidia, 
we  understand  castles,  ports,  towns  and  fleets;  for  in  any  one 
of  these  the  thing  taken  may  be  considered  as  safe,  and  in  a 
situation  to  be  defended. 

But  how  can  the  twenty-four  hours  be  sufficient,  if  it  is  not 
even  sufficient,  in  order  to  change  the  property,  that  the  cap- 
tured thing  should  have  been  carried  intra  prcesidia?  For 
such  is  the  mistaken  idea  of  some,  nay,  of  those  whose 
authority  otherwise  is  of  the  greatest  weight.  They  are 
of  opinion,  that  captured  ships  do  not  become  the  property 
of  the  captors,  unless  they  have  been  carried  into  one  of  his 
ports  and  condemned  there,  and  afterwards  have  freely  navi- 
gated to  a  neutral  port.  Of  merchandizes  and  other  things, 
which  are  within  the  same  reason,  they  might  have  said  the 
same  thing,  but  1  believe  they  were  ashamed.  I  well  know 
what  the  states-general  decreed  concerning  captured  vessels 
on  the  27th  of  November  1666:  "  That  if  ships,  taken  by  the 
enemy  and  carried  into  England^  and  the  kingdoms  thereto 
belonging,  and  there  condemned  as  prize,  and  purchased  by 
neutrals,  should  be  captured  by  Dutch  ships  on  their  way 
from  the  enemy's  ports,  either  in  ipso  actu  or  afterwards, 
before  arriving  at  their  port  of  destination  or  at  some  other 
free  port,  such  ships  should  then  and  therefore  be  declared 
good  prize,  as  was  usual  in  ancient  times,  and  agreeably  to 
the  disposition  of  the  fourth  point  of  the  case  stated*  of  the 
26th  of  June  163O,  mutatis  mutandis."  I  have  quoted  the 
precise  words  of  the  decree,  that  I  may  not  be  thought  to  re- 
late incredible  things.  You  will  wonder,  indeed  for  my  part  T 

*  See  the  next  page. 


30  TREATISE  ON  THE  LAW  OF  WAR. 

certainly  do  wonder,  what  it  can  signify,  whether  the  ships  have 
arrived  or  not  into  one  of  the  ports  of  the  purchaser,  or  into 
some  other  friendly  port.  This  national  or  friendly  port  must 
theu  give,  I  know  not  how,  I  know  not  what,  to  I  know  not 
whom.  It  would  not  give  a  right  of  property  to  the  enemy, 
who  already  had  taken  and  sold  the  prize,  nor  to  the  purchaser, 
who  had  thus  purchased  our  own  property  from  one  who  was 
not  the  rightful  owner  thereof.  Then  that  certain  port  of  the 
neutral  purchaser  or  of  his  friend  would  actually  be  the  thing 
that  would  take  the  property  of  the  vessel  from  us.  If  recourse 
was  to  be  had  to  a  fiction,  it  would  have  been  better  to  sup- 
pose that  the  vessel  became  enemy's  property  by  the  enemy's 
capture,  remained  such  until  it  was  purged  of  that  taint,  and 
that  it  could  not  be  so  purged  until  it  had  entered  the  port 
of  the  neutral  or  of  one  of  his  friends,  until  which  time  it 
might  be  lawfuly  retaken.  But  such  a  fiction  would  not  have 
been  legal,  because  by  the  act  of  purchase  the  thing  belongs  to 
the  purchaser,  nor  is  it  material  whether  it  was  originally 
his,  or  whether  it  became  his  property  by  capture  and  condem- 
nation. 

But  observe  how  improperly  ancient  custom  is  appealed  to, 
and  see  that  other  decree  of  the  states-general  of  the  26th  of 
June  1630,  which  is  supposed  to  have  given  rise  to  that 
custom.  That  decree  was  made  on  a  case  stated  by  the  ad- 
miralty of  Amsterdam,  which  contained  several  questions,  to 
the  fourth  of  which  the  states  answer  thus: 

"  On  the  fourth  point  their  high  mightinesses  declare,  that 
ships  taken  by  the  enemy,  carried  into  Flanders,  and  pur- 
chased by  neutrals,  but  which  shall  be  taken  in  the  very  act  of 
coming  out  of  the  enemy's  ports  or  on  their  way  from  them, 
before  they  have  been  into  their  own  or  in  other  free  ports, 
shall  be  lawful  prize,  as  has  always  been  the  custom  in  ancient 
times,  by  virtue  of  the  right  herein  before  alleged  as  to  the 
first  point;  and  likewise  such  vessels,  which  being  so  cap- 
tured and  purchased,  and  having  run  out  of  the  said  Flemish 
ports  into  other  ports  under  the  dominion  of  the  king  of 
Spain,  and  coming  from  thence,  shall  be  captured  by  Dutch 
ships.'* 


TREATISE  ON  THE  LAW  OF  WAR.  31 

That  this  decree  is  very  foreign  to  that  cause  appears  from 
the  case  stated  itself;  and  the  states-general  themselves,  by 
referring  to  the  first  head  of  tke  decree,*  sufficiently  make 
known  what  was  their  reason  for  enacting  it.  The  fact  is,  that 
for  the  sake  of  preventing  commercial  intercourse,  the  states- 
general  had  blocked  up  the  ports  of  Flanders  with  ships  of 
war,  so  that  all  vessels,  to  whomsoever  belonging,  bound  to 
those  ports,  or  sailing  from  them,  were  condemned  by  them 
as  lawful  prize;  because  by  the  law  of  nations  and  accoi'ding 
to  the  principles  of  reason  it  is  not  lawful  to  carry  any  thing 
to  a  blockaded  port,  nor  to  take  any  thing  away  from  it. 
Therefore  the  admiralty  said,  and  the  states-general  decreed, 
that  the  same  law  applied  to  vessels  which  had  been  before 
taken  from  us  and  afterwards  sold,  because  it  was  lawful  to  , 
take  even  the  ships  of  friends  when  trading  with  blockaded  \ 
ports;  which  is  true  so  far,  that  is,  if  they  are  taken  before 
their  voyage  is  ended,  and  while  employed  in  the  illicit 
trade,  for  the  voyage  is  not  considered  as  completed  until 
the  vessels  have  entered  into  their  own  or  a  friendly  port. 

This  and  nothing  else  was  what  the  states-general  had  in 
view  by  the  said  decree  of  the  26th  of  June  1630,  and  on 
these  principles,  that  of  the  27th  of  November  1666  would  have 
been  very  proper,  if  in  that  year  the  whole  of  England,  Scot- 
land and  Ireland,  and  all  the  British  dominions  in  Asia, 
Africa  and  America  had  been  blockaded  by  the  fleets  of  the 
states-general.  It  is  indeed  related,  that  in  the  year  1652 
they  boasted  of  a  similar  thing  with  regard  to  the  English, 
having  prohibited  all  trade  with  them  to  all  the  world.f  But 
upon  what  foundation  they  so  boasted  I  do  not  now  inquire. 
I  content  myself  with  observing,  that  the  same  states-general 
in  1663  denied  to  the  Spaniards,  who  pretended  to  blockade 
the  whole  of  Portugal,  that  same  right  which  they  had  before 
arrogated  to  themselves  against  the  English.  These  facts  are 
so  recorded  in  Aitzema's  chronicle.:}: 

*  That  is  to  say,  the  Jirst  point  of  the  case  stated,  on  which  the  states 
made  their  decree.  What  that  Jirst  point  was,  does  not  precisely  appear, 
though  it  may  be  gathered  from  the  context  of  our  author's  observations  on 
the  whole  decree.  T. 

f  Aitz.  B.  32. 1  Aitz.  B.  43. 


32  TREATISE  ON  THE  LAW  OF  WAR. 

From  thence  it  appears,  that  the  said  decree  of  the  states- 
general  of  the  27th  of  November  1666  cannot  be  defended. 
And  indeed  if  we  once  admit  the  principles  of  that  decree,  a 
number  of  monstrous  consequences  will  necessarily  follow:  for 
as  the  poet  says, 

"  Si  prava  est  regula  prima, 
"  Omnia  mendose  fieri  atque  obstipa  necesse  est." 

It  will  manifestly  follow,  that  all  enemy's  goods,  without 
exception,  will  be  placed  in  precisely  the  same  predicament; 
for  whatever  enemies  have  by  capture  is  as  much  their  own 
as  what  they  have  by  succession,  purchase,  or  by  any  other 
title.  Therefore  the  same  is  to  be  said,  not  only,  as  I 
observed  before,  of  merchandize  and  other  things  which 
enemies  have  "taken  from  us,  but  also  of  ships,  and  every 
thing  else  which  they  have  otherwise  than  by  taking  it  from 
us,  and  which  our  friends  have  purchased  from  them.  If 
this  be  admitted,  we  must  also  admit  that  it  is  lawful  for 
princes  to  interdict  their  enemies  from  the  use  of  fire  and 
water,  and  to  forbid  all  the  world  from  carrying  on  a  com- 
mercial intercourse  with  them,  which  hitherto  has  only  been 
done  so  far  as  relates  to  those  things  which  are  called  contra- 
band: for  all  things  of  that  kind  which  our  friends  may  pur- 
chase of  our  enemies,  may  lawfully  be  taken  and  confiscated, 
unless  they  have  been  carried  into  a  neutral  port. 

But  it  is  unreasonable  to  infer  a  general  rule  from  a  law 
which,  against  the  principles  of  reason,  has  been  established 
in  a  particular  case,  by  which  means  a  pretence  will  be  given 
to  every  sovereign  to  commit  injustice.  On  this  and  no  other 
ground  was  founded  the  edict  of  Louis  XIV.  king  of  France, 
of  the  17th  of  September  1672,  by  which  he  ordered  the  cap- 
ture and  confiscation  of  all  vessels,  even  purchased  by  his 
friends  in  the  United  Provinces  and  found  coming  from 
thence.  In  consequence  of  that  edict,  on  the  next  day  a  certain 
vessel  was  condemned  which  had  been  taken  coming  from 
Holland,  where  she  had  been  built  and  purchased  by  Ham- 
burghers,  manned  with  a  Hamburgh  crew,  and  was  going  to 
Hamburgh.  To  that  edict  of  the  king  of  France,  the  states- 
general,  that  they  might  not  appear  to  do  less  harm  to  their 


TREATISE  ON  THE  LAW  OF  WAR.  33 

friends,  (for  such  things  fall  upon  the  heads  of  friends) 
replied  by  an  edict  in  which  they  decreed  "  that  all  ships 
purchased  by  neutrals  within  the  dominions  of  the  king  of 
France,  although  manned  with  a  neutral  crew,  which  sailing 
for  the  first  time  from  the  enemy's  ports,  and  not  yet  having 
been  in  the  neutral  port  to  which  they  were  bound, 
should  fall  into  the  hands  of  Dutch  cruizers,  should  be 
lawful  prize."  One  would  think  that  this  edict  was  founded 
on  the  law  of  retaliation;  but  retaliation  is 'only  to  be  exercised 
on  him  who  has  committed  the  injury,  and  not  against  a 
common  friend.  Therefore  the  edict  of  the  states-general  of 
the  29th  of  November  1666  cannot  fare  defended  on  the  ground 
that  the  English  had  before  acted  with  a  greater  degree  of  in- 
justice when  their  ambassador,  on  the  23d  of  December  1664, 
gave  notice  to  the  Hanse-  Towns,  who  were  in  amity  then  both 
with  England  and  the  states-general,  that  all  the  ships  which 
they  should  purchase  in  the  territory  of  the  United  Provinces 
should,  without  distinction  of  voyage,  be  considered  as  ene- 
mies.* He  who  has  done  no  injury  ought  not  in  justice  to 
suffer. 

Moreover,  from  those  decrees  of  the  states-general  of  1630 
and  1666,  one  might  think  that  it  appears  that  those  things 
which  our  friends  have  purchased  from  our  enemies  cannot 
be  taken  from  them,  if  they  have  once  been  carried  into  a 
neutral  port,  as  they  say  that  such  things  may  be  lawfully 
condemned,  "  before  they  have  been  into  their  own  or  some  other 
neutral  port:"  but  so  much  does  not  even  sufficiently  appear. 
The  admiralty  of  Amsterdam  had  consulted  the  states- 
general  upon  this  subject,  but  nothing  was  decided  upon  it; 
for  the  states  simply  answered  by  their  letter  of  the  26th  of 
June  1630,  "  As  to  ships  taken  by  the  enemy  from  the  inha- 
bitants of  this  country,  carried  into  Flanders  and  there  con- 
demned, which  without  being  taken  should  be  carried  into 
England,  France,  or  other  neutral  countries,  and  should  be 
captured  by  our  ships  on  their  way  from  thence  on  other  free 

*  Aitz.  b.  44. 


34  TREATISE  ON  THE  LAW  OF  WAR. 

voyages,  we  ought  to  have  some  short  time  to  consider, 
whether  or  not  they  should  be  declared  lawful  prize,  re- 
questing that  in  the  mean  time  you  will  communicate  to  us 
the  sentences  that  have  been  given  in  similar  cases,  and  the 
decisions  that  have  taken  place  thereon  in  other  countries." 
On  this  same  question  I  find  that  the  court  of  Holland  was 
consulted  in  the  following  year,  1631;  but  I  do  not  know  what 
answer  they  gave.  But  although  the  Dutch  lawyers,  requested 
to  give  their  opinions  on  the  same  point,  on  the  25th  of 
January  1636,  answered  very  properly  and  upon  true  legal 
principles,  "  that  our  ships,  taken  by  the  enemy  and  purchased 
by  neutrals,  became  by  the  very  act  of  capture  the  property 
of  the  enemy,  and  therefore  lawfully  belonged  to  those  who 
purchased  from  him,"  there  have  nevertheless  been  since 
that  time  disputes  upon  that  subject.*  But  that  this  doubt 
of  the  states-general  in  the  year  1630  may  not  hereafter 
occasion  any  prejudice,  when  similar  cases  shall  arise,  I 
must  repeat  what  I  have  said  above,  that  they  had  a  special 
case  before  them,  that  the  question  was  concerning  the 
blockaded  Flemish  ports,  which  not  being  attended  to,  has 
involved  the  point  in  obscurity;  but  that  from  thence  it  would 
not  be  proper  to  argue  as  to  ports  which  were  not  blockaded, 
and  to  and  from  which  a  free  ingress  and  egress  was  per- 
mitted. The  decree  of  the  27th  of  November  1666  is  sufficiently 
iniquitous,  let  us  not  therefore  add  to  it  another  injustice, 
which  was  not  in  fact  such,  because  founded  on  a  special 
case. 

But  if  the  states-general  had  meant  to  say,  that  the  pro- 
perty of  a  prize  is  not  altered,  unless  it  has  been  carried  into 
the  enemy's  port,  and  has  afterwards  freely  sailed  from 
thence  and  arrived  into  the  port  of  a  friend,  what  ground  or 
reason  would  there  be  for  their  edicts,  by  which,  in  case 
of  recapture  of  our  vessels  taken  by  the  enemy,  they 
allow  a  part  to  the  recaptor  and  a  part  to  the  original 
owner?  If  mere  capture  transfers  the  property,  what  right 
remains  to  the  former  owner?  if  not,  what  right  has  the 

*  Aitz.  b.  21.;  Id.  b.  23. 


TREATISE  ON  THE  LAW  OF  WAR.  35 

recaptor  to  a  certain  part,  when  the  former  owner  may  reclaim 
his  property?  I  should  think  for  my  own  part  with  many 
others,  that  no  right  remains  in  him,  and  so  is  the  usage 
among  all  nations.  These  are  things  that  can  neither  be 
reconciled  with  the  decree  of  the  27th  of  November  1666,  nor 
with  law,  nor  with  common  sense* 


36  TREATISE  ON  THE  LAW  OF  WAR. 

ll^w 

CHAPTER  V. 

Of  the  Recapture  of  movable  Property. 

WHAT  I  have  lightly  touched  upon  at  the  end  of  the  last 
chapter,  I  am  now  going  to  consider  and  discuss  more  at 
large.  Whereupon  it  is  to  be  observed,  that  immovable  pro- 
perty, when  recaptured,  returns  to  the  former  owners  by  post- 
liminy,  but  that  movables  which  we  now  treat  of  do  not  so 
return.  It  is  thus  laid  down  by  Labeo,  in  1.  28.  de  Capt.  t? 
Postlim.  Revers:  Si  quid  hello  captum  est^  in  prccda  esl,  non 
postliminio  redit.  "  If  any  thing  be  taken  in  war,  it  is  a  prize, 
and  does  not  return  by  postliminy."  As  to  ships,  however, 
although  they  are  considered  as  movables,  he  distinguishes, 
/.  2.  pr.Jf.  eod.,  that  such  ships  as  may  be  of  use  in  war  return 
by  postliminy,  but  others  not.  But  this  and  other  distinctions 
of  the  Roman  law  between  movable  things  have  become 
obsolete  by  the  gradual  change  of  manners,  as  Grotius  justly 
observes.*  Hence  now  movable  goods,  without  any  dis- 
tinction, are  prize,  without  any  right  of  postliminy.  As  a 
consequence  from  this  it  has  been  inferred  that  goods  taken 
by  the  enemy,  and  afterwards  recaptured,  vest  in  the  re- 
captorsj  because,  as  capture,  in  time  of  war,  transfers  the 
property,  so  recapture  must  of  course  transfer  it  in  like 
manner.  But  we  do  not  recapture  for  ourselves,  except 
those  things  which  have  pleno  jure  become  enemy's  pro- 
perty; for  if  they  have  not,  the  former  owner  may  still 
vindicate  his  right.  As  to  the  time  when  movable  goods  are 
considered  pleno  jure  as  having  become  the  enemy's  property, 
it  depends  on  the  circumstances  which  I  have  treated  of  in  the 
preceding  chapter. 

Although  the  definition  of  this  thing  is  very  uncertain,  so 
much,  however,  is  most  true,  that  movable  goods  carried 
intra  praesidia\  of  the  enemy,  become  clearly  and  fully  his 

*  De  Jure  Belli  ac  Pac.  1.  3.  c.  9.  §  15. f  Within  the  places  of  safety.   T. 


TREATISE  ON  THE  LAW  OF  WAR.  37 

property,  and  consequently,  if  retaken,  vest  entirely  in  the 
recaptors.  The  same  is  to  be  said  of  ships,  carried  into  the 
enemy's  ports,  and  afterwards  recaptured,  so  that  no  property 
or  right  to  them  remains  in  the  former  owner,  as  I  mentioned 
at  the  end  of  the  preceding  chapter.  On  these  principles, 
the  agreement  which  was  made  on  the  22d  of  October  1689, 
between  the  king  of  England  and  the  states-general,  then  allies 
in  war,  that  each  other's  ships  when  recaptured  should  be 
restored  to  the  former  owner,  on  payment  of  a  certain 
salvage,  has  been  construed  to  apply  only  to  cases  where  the 
ships  had  not  been  carried  into  the  ports  of  the  enemy  %  for 
otherwise  they  are  to  be  entirely  the  property  of  the  recaptors. 
.  So  far  is  sufficiently  clear,  but  what  is  not  equally  so  is 
what  is  to  be  understood  by  prcesidia,  or  ports?  Is  it  the  ports  <X 
of  those  who  have  taken  the  ship,  or  of  their  allies?  It  may  be 
said  that  it  is  enough  if  they  are  carried  into  the  ports  of  the 
latter,  provided  they  are  their  allies  in  the  existing  war,  and 
equally  with  themselves  the  enemies  of  those  whose  vessels 
have  been  taken.  Prizes  are  equally  safe  in  the  ports  of -such  an 
ally,  as  in  those  of  the  captor  himself,  and  there  is  no  hope  of 
retaking  them,  unless  they  should  sail  again  out  of  that  port. 
But  when  the  French  had  taken  two  Hamburg  ships,  on  the 
28th  of  December  1675,  in  which  were  the  goods  of  Amsterdam 
merchants,  and  had  had  them  fourteen  days  in  their  posses- 
sion, and  afterwards  carried  them  into  the  port  of  Hull  in 
England,*  I  find  that  the  states-general  entertained  a  different 
opinion.  The  admiralty  of  Dunkirk,  before  the  return  of 
the  French,  had  condemned  the  said  ships  and  their  cargoes, 
and  the  French  had  even  sold  a  part  of  the  goods  at  Hull; 
and  as  the  ships,  with  the  remainder  of  the  goods,  were  on 
their  way  to  Dunkirk,  they  were  taken  by  the  Zealanders, 
carried  into  Zealand,  and  there  condemned.  But  the  states- 
general,  being  applied  to  by  the  Amsterdam  merchants,  did,  on 
the  23d  of  October  1676,  decree,  that  the  recaptured  goods 
should  be  restored  to  their  former  owners,  because  they  had 
not  yet  been  carried  into  the  ports  of  the  enemy  and  there  con- 

*  England  was  at  that  time  in  alliance  with  France  against  the  United 
Netherlands.  T. 


38  TREATISE  ON  THE  LAW  OF  WAI 

demned  and  distributed.  By  the  ports  of  the  enemy,  the  states- 
general  understood  those  of  the  captors,  for  they  say  "  of  the 
aforesaid  enemy"  thereby  implying  that  it  was  not  sufficient  that 
the  ships  had  been  carried  into  another  port,  either  of  a.  friend 
or  of  an  ally  in  the  war.  It  appears  to  me  that  the  Zealanders 
had  the  lazv,  and  the  states-general  hud  power  on  their  side.* 

Ships  therefore  become  the  property  of  the  enemy,  which 
have  been  taken  by  them,  and  carried  into  their  ports.  But 
what  if  they  have  not  been  yet  carried  thither,  and  should 
have  remained  some  time  in  the  port  of  a  friend  or  ally,  or 
navigated  in  company  with  the  capturing  ship?  Certainly, 
if  we  consider  the  laws  of  our  country,  and  the  authority 
of  publicists,  it  can  hardly  be  said,  that  the  length  of  time 
that  ships  have  been  captured,  or  the  place  into  which  they 
have  been  carried,  though  ever  so  safe,  can  transfer  the  pro- 
perty, unless  they  have  been  carried  into  port.  Hence  jurists 
simply  say,  that  every  thing  which  is  retaken  before  it  is  car- 
ried into  the  enemy's  ports,  is  entitled  topostlimmy,  although 
it  may  have  been  taken  for  several  months,  and  although  it 
may  have  remained  in  the  ports  of  a  common  friend,  and  that 
it  does  not  vest  in  the  enemy,  unless  he  has  carried  it  into  his 

*  From  this,  and  what  our  author  says  afterwards,  page  41,  it  seems  that 
he  was  of  opinion  that  a  belligerent  might  lawfully  condemn  enemy's  pro- 
perty, while  lying  tinder  capture  in  a  neutral  port.  Such  appears  also  to  have 
been  the  opinion  of  that  able  civilian  sir  William  Scott,  (while  advocate- 
general)  and  of  the  whole  court  of  king's  bench  in  England,  in  1789.  (Smart  \ 
Wolff,  3  Term,  Pep.  329.)  But  political  considerations  have  since  induced 
that  learnedjudge  to  maintain  the  opposite  doctrine,  contrary  to  the  ancient, 
nay,  inveterate  practice  of  his  own  country,  which  probably,  however, 
continues  the  same,1  the  superior  court  not  having  appeared  disposed  to 
controvert  the  established  principle  and  to  adopt  the  new  rule  which  was 
pointed  out  to  them.  (The  Herstelder,  1  Robinson's  Reports,  100.;  the  Htndrick 
:nul  Si/aria,  5  Rob.  35.  6  Rob.  138.  Amer.  edit.)  The  supreme  court  of  the 
United  States  have  sanctioned  what  appears  to  be  the  opinion  of  our  author 
on  this  point,  by  their  decisions  in  the  cases  of  Rosev,  Himely  and  Hudson  v. 
Giiestier,  4  Crunch's  Reports,  241.  293.  These  decisions  are  conformable  to 
the  universal  practice  of  Europe  for  more  than  one  hundred  years,  which  is, 
indeed,  sufficiently  justifiable,  on  principles  of  convenience  to  neutrals  as 
well  as  to  belligerents.  See  Lampredi,  del  commercia  de"  popeli  ncutrali  ii> 
rrmp'o  di  ftierra,  part  1.  §  14.  T 


TREATISE  ON  THE  LAW  OF  WAR.  39 

own  ports.  The  word  postliminy  is  very  improperly  used  here, 
because  those  who  know  what  postliminy  is,  know  also,  that 
it  does  not  take  place  except  in  regard  to  those  things  which 
had  before  become  the  property  of  the  enemy.  They  should 
have  said,  that  before  prizes  were  carried  into  port,  they  did 
not  become  the  property  of  the  enemy,  but  remained  the  pro- 
perty of  the  former  owner,  and  that  therefore  when  recap- 
tured they  returned  to  him,  and  did  not  go  to  the  recaptor. 

It  will  not  be  unprofitable  to  consider  what  laws  have  been 
made  on  this  subject  in  this  country,  taking  them  in  their  chro- 
nological order.  There  are  some  who  think  from  the  edict  of 
the  states  of  Holland,  of  the  4th  of  March  1600,  that  there 
existed  a  right  in  favour  of  former  owners  to  claim  their  cap- 
tured property,  wherever  they  might  find  it,  even  though  it 
had  been  carried  into  the  enemy's  ports.  This  is  correct  as 
far  as  the  edict  goes,  but  it  speaks  only  of  those  vessels,  which 
the  states  of  Holland  considered  as  having  been  condemned 
in  violation  of  the  laws  of  war,  as  I  have  said  before;  (c.  2.) 
therefore  the  edict  does  not  apply  to  the  present  question.  It 
the  ships  have  been  lawfully  taken,  carried  into  port  and 
condemned,  every  claim  must  cease;  and  if  they  sail  after- 
wards, there  remains  nothing  but  a  right  to  recapture,  and 
whoever  retakes  them  will  be  their  full  and  complete  owner. 
But  it  is  important  to  know,  before  the  carrying  of  the  ship 
into  port  and  her  subsequent  condemnation,  what  right  be- 
longs to  the  former  owner,  and  what  to  the  recaptor?  If  we 
know  what  belongs  to  the  one,  we  know  at  the  same  time  that 
the  remainder  belongs  to  the  other. 

The  oldest  law  that  I  know  of  on  this  subject,  is  the 
edict  of  the  states-general  of  the  4th  of  July  1625,  by 
which  it  is  enacted,  that  if  a  vessel  be  retaken  within 
twenty-four  hours,  one  eighth  goes  to  the  private  recaptors; 
if  within  forty-eight  hours,  one  fifth;  if  afterwards,  one 
third.  This  law  the  same  states-general  on  the  22d  of  July 
1625,  applied  to  ships  of  war,  recapturing  private  vessels. 
There  followed  afterwards  another  law  also  enacted  by  the 
states-general,  of  the  llth  of  March  1632,  by  which,  without 
any  distinction  of  time,  private  recaptors  were  entitled  to  two 


40  TREATISE  ON  THE  LAW  OF  WAR. 

thirds  of  their  recapture.  But  afterwards,  on  the  1st  of 
September  1643,  the  states-general  altered  this  disposition, 
for  by  the  fifty-eighth  section  of  their  edict  of  that  date,  if 
a  ship  be  recovered  within  twenty-four  hours,  the  recaptor  is 
to  have  one  eighth;  if  within  forty- eight  hours,  one  fifth,  and 
if  afterwards,  one  third,  as  in  former  edicts,  which,  I  think, 
were  made  on  the  4th  and  22d  of  July  1625.  Afterwards 
they  returned  to  two  thirds,  without  any  distinction  of  time 
with  regard  to  privateers,  agreeably  to  the  edict  of  the  year 
1632.  The  16th  section  of  the  edict  of  the  states-general  of 
the  8th  of  February  1645,  gave  two  thirds  to  the  recaptors,  and 
added  that  the  value  of  the  vessel  and  cargo  should  be  amicably 
estimated  between  the  owner  and  the  recaptor,  otherwise  that 
the  admiralty  should  decree  on  the  amount  of  salvage.  They 
again  changed  their  minds  on  the  19th  of  April  1659,  for 
by  a  decree  of  that  date,  they  gave  to  the  recaptors,  whether 
of  public  or  private  ships,  but  one  ninth  part  of  the  vessel 
and  cargo  retaken,  thus  again  abolishing  every  distinction  of 
time.  This  decree,  however,  was  never  published,  but  I  have 
found  it  among  the  acts  of  the  states-general,  and  it  is  men- 
tioned somewhere  else.  At  last,  the  states-general,  saving,  as 
they  say,  the  ancient  laws  as  to  ships  of  war  (what  ancient 
laws  they  meant  I  cannot  say,  as  they  have  so  varied)  did  on 
the  13th  of  April  1677,  decree  as  to  private  recaptors  as  fol- 
lows, to  wit:  that  they  should  have  by  way  of  salvage,  one 
fifth  of  the  ship  and  goods  retaken,  if  the  same  had  not  yet 
been  forty-eight  hours  in  the  possession  of  the  enemy;  if  forty- 
eight  hours  and  less  than  ninety-six  hours,  then  one  third;  if 
more  than  ninety-six  hours,  one  half. 

The  king  of  England  and  the  states-general  were  pleased 
to  establish  between  them  the  same  distinction  and  division  of 
time,  and  the  same  rates  of  salvage,  by  the  treaty  above  men- 
tioned of  the  22d  of  October  1689,  in  case  a  privateer  of 
one  nation  should  retake  the  ships  or  goods  of  a  subject  of  the 
other  party,  but  if  the  recapture  should  be  made  by  a  ship  of 
war,  the  recaptor  was  to  have  only  one  eighth,  without  any 
distinction  of  time. 


TREATISE  ON  THE  LAW  OF  WAR.  41 

Now,  why  so  much  variety?  why  these  distinctions  of  time  and 
those  greater  and  lesser  shares  in  proportion  thereof?  Whence 
again,  if  the  distinction  of  time  must  be  had,  so  much  diversity 
in  the  proportion  of  the  salvage?  Why  also,  rejecting  all  dis- 
tinction of  time,  is  now  so  large  a  proportion  as  two  thirds 
and  now  so  small  a  one  as  one  ninth  allowed  to  the  recaptor? 
Certainly  it  is  difficult  to  give  a  reason  for  things  that  have 
been  established  without  any  reason,  and  here,  if  any  where, 
it  will  be  proper  to  refer  to  the  law  non  omnium* — the  reader 
knows  the  rest.  The  public  tranquillity  of  nations  however,  and 
the  repose  of  our  own  subjects,  require  that  something  certain 
should  be  established  upon  rational  principles.  The  whole  de- 
pends upon  this  question:  when  do  we  consider  that  captured 
ships  and  goods  vest  absolutely  in  the  enemy?  The  law  indeed 
has  decided  that  they  so  vest  by  a  true  and  complete  occupa- 
tion. But  the  yariety  of  cases  and  circumstances  does  not  al- 
ways permit  us  to  know,  whether  there  is  actually  a  firm  pos- 
session, that  is  to  say,  such  a  one  as  the  captor  may  retain  and 
defend.  What  the  enemy  has  taken  on  the  high  seas,  at  a- 
great  distance  from  his  territory,  he  may  lose,  and  often 
loses  by  recapture.  If  he  carries  what  he  has  taken  into  his  own 
ports  and  territory,  no  one  can  doubt  that  it  has  then  become 
his  absolute  property.  I  -would  say  the  same  if  he  had  carried 
it  into  the  port  of  a  neutral  OF  of  an  ally,  but  if  this ,  as  I  said 
above,  cannot  be  admitted,}  I  must  grant,  that  whatever  is  taken 
at  sea,  is  to  be  carried  into  the  captor's  own  port  or  fleet,  and 
that  it  cannot  be  until  then  considered  as  fully  his. 

What  then,  if  it  be  recaptured  before  that  time?  Then  the 
former  owner  will  have  a  right  to  claim  his  property,  as  the 
property  has  neither  vested  in  the  captor  nor  in  the  recaptor; 
I  say  the  former  owner,  because  there  has  been  an  interme- 
diate possession  of  some  kind.  But  shall  the  owner  claim  his 
property  from  the  recaptor,  without  paying  him  any  salvage  or 
reward  for  the  recapture?  without  any  remuneration  for  his 

*  Non  omnium,  qu<e  a  majoribus  constituta  sunt,  ratio  reddi  fotcst.  A  reason 
cannot  lie  given  for  every  law  which  our  ancestors  have  established.  Dig. 
1, 1.  tit.  3. 1.  20:  '  T. 

f  See  note,  p.  38. 


. 

42  TREATISE  ON  THE  LAW  OF  WAR. 

labour  and  expense  in  and  about  the  said  recapture?  this, 
equity,  the  supreme  law  of  nations,  will  not  permit.  It  requires 
that  a  salvage,  premium,  reward,  something,  in  short,  by  what- 
soever name  it  may  be  called,  should  be  given.  The  recaptor 
has  saved  the  ship  and  goods,  which  otherwise  would  have 
been  lost  to  the  owner,  and  why  should  he  have  exposed 
himself  to  danger  without  any  hope  of  reward?  why  should  he 
have  fought  for  the  property  of  another  as  if  it  were  his  own? 
why  should  he  have  employed  his  arms  and  his  men  ID  no 
purpose  whatever?  He  has  beneficially  managed  the  business 
of  the  owner,  and  he  is  entitled  for  his  labour  and  expenses  to 
the  action  negotiornm  g-estorum.*  I  do  not  know  of  any  other 
action  in  the  Roman  law  proper  for  the  recaptor;  if  the  thing 
is  to  be  decided  by  the  rules  of  the  Roman  jurisprudence,  for 
this  action  is  the  only  proper  one  when  a  reward  is  sued  for, 
either  for  work  and  labour  done  or  for  money  laid  out.  But 
upon  what  law  or  principle  it  has  been  thought  proper  to  give 
to  the  recaptor  a  part  of  the  thing  retaken,  I  do  not  myself 
understand;  much  less  do  I  understand  how  that  proportion 
can  be  greater  or  less  according  to  the  quantity  of  time  that 
the  thing  taken  has  been  in  the  hands  of  the  enemy.  What 
have  24,  48  or  96  hours  to  do  here?  The  greater  or  lesser 
duration  of  the  enemy's  possession,  when  the  thing  taken  has 
not  been  carried  into  a  place  of  §afety,  cannot,  in  my  opinion, 
give  a  greater  or  a  less  right. f 

Wherefore,  if  the  subject  is  to  be  considered  according  to  the 
rules  of  reason,  every  distinction  of  time  is  to  be  abolished,  and 
in  lieu  thereof  is  to  be  the  proportioned  value  of  the  recaptor's 
x<labour  and  expenses,  taking  into   consideration   the  danger 
that  he  has  been   exposed  to,  and  the   value   of  the  things 
'  saved.  From  all  these  considerations  taken  together,  impar- 
tial men  are  to  settle  and  determine  what  reward  he  is  enti- 
tled to.   Nor  should  the  allowance  be  dealt  with  a  sparing,  but 

"  This  action  in  the  civil  law  is  analogous  to  our  general  assumpxit  founded 
i>n  an  implkil  contract,  for  work  and  labour  done  and  money  laid  out  and 
expended.  T. 

•j  See  the  case  r>f  the  Santa  Cruz,  1  Rob.  44.  Phllad.  edit,  in  no;.-         7'. 


TREATISE  ON  THE  LAW  OF  WAR.  43 

with  a  liberal  hand,  in  order  to  encourage  the  industry  of  re- 
captors.  For,  is  it  to  be  of  no  consequence  whether  the  recapture 
hasJDeen  made  with  great  or  little  trouble  or  labour?  whether 
the  recaptor  has  fought, bravely?  whether  he  has  expended  a 
great  deal?  whether  the  things  saved  are  of  great  or  of  little 
value?  If  it  should  be  observed  that  the  valuation  of  such  things 
is  so  uncertain  that  it  might  occasion  a  great  deal  of  litigation, 
I  answer,  that  as  the  matter  stands,  there  will  not  be  less  con- 
troversy, and  that  there  have  often  been  great  contestations 
about  the  value  of  a  ship  and  goods,  and  what  ought  to  be  de- 
ducted from  it,*  before  the  true  value  thereof  has  been  deter- 
mined. 

But  afterwards,  if  you  still  chuse  to  give  a  part  of  the 
thing  saved,  give  it;  not,  indeed,  in  proportion  to  the  time  that 
the  prize  has  been  in  the  possession  of  the  enemy,  but 
to  the  labour  employed  upon  it,  as  is  usual  in  other  cases 
of  salvage.  Thus  the  Rhodian  law  has  allowed  a  reward  to 
those  who  have  saved  property  from  shipwreck,  varying  ac- 
cording to  the  degree  of  labour,  as  is  said  by  Harmenopulus, 
npo%.  1.  2.  tit.  11.  §  18.  agreeably  to  which  I  interpret  the 
reasonable  salvage  which  Mary  of  Burgundy  allowed  to  the 
salvors  of  shipwrecked  property,  by  her  law  made  for  Holland 
and  Zealand,  on  the  14th  of  November  1476.  A  proportion  of 
the  thing  saved  from  shipwreck  was  also  allowed  by  the  edict 
which  Philip  II.  on  the  15th  of  May  1574  issued  in  the  name 
of  William  of  Orange,  which  has  been  often  since  reenacted, 
and  lately,  on  the  2d  of  April  1676;  but  the  salvor  is  allowed 
there  a  greater  proportion  than  is  therein  expressed,  if  he  has 
been  at  a  greater  labour  and  expense.  I  conceive  that  the 
states  of  Holland  had  a  view  to  this,  when  on  the  22d  of  July 
1677,  they  decreed  a  reasonable  salvage  to  those  who  should 
take  up  timbers  floating  down  the  rivers  without  any  guard, 
and  deliver  them  up  to  the  company  of  ship-builders  at  Dor- 
drecht. Those  laws  do  not  distinguish,  how  long  the  things 
shipwrecked,  and  the  timbers  found  drifting  may  have  been. 

*  In  the  United  States,  salvage  is  generally  allowed  on  the  gross  value  of 
the  property  saved.  T. 


44  TREATISE  ON  THE  LAW  OF  WAR. 

floating  at  the  mercy  of  the  sea,  rivers  and  wind,  as  there  is 
no  reason  for  that  distinction,  but  left  it  to  the  arbitration  of 
impartial  men,  to  determine  the  amount  of  the  reward  for  the 
labour  and  expenses.  Nor  do  I  think  that  any  other  rule 
should  be  followed,  with  respect  to  ships  and  goods  retaken 
from  the  enemy. 

Indeed,  in  the  book  called  //  Consolato  del  Mare,  the  point 
is  determined  exactly  as  I  have  said;  for  there  the  recaptor 
is  ordered  to  restore  the  vessel  and  cargo  to  the  former 
owner,  saving  however,  a  salvage,  which,  in  order  to  be  just, 
is  to  be  liquidated  in  proportion  to  the  labour  and  expense 
employed  in  and  about  the  recapture,*  without  making 
any  distinction  about  the  time  that  the  vessel  and  cargo  have 
been  in  the  possession  of  the  enemy.  It  is  very  properly 
added  in  the  same  book,  that  this  restitution  only  takes  place 
when  the  ship  has  not  yet  been  carried  into  a  place  of 
safety,  but  that  if  it  has  been  so  carried,  the  property  having 
thus  clearly  vested  in  the  enemy,  if  the  ship  and  goods  are 
afterwards  retaken,  they  belong  entirely  to  the  recaptor.f 
Which  agrees  perfectly  with  the  doctrine  that  I  have  con- 
tended for  in  this  chapter.  I  wish  that  all  the  principles 
•/  '"which  are  contained  in  that  farrago  of  nautical  laws  were 
equally  correct;  but  every  thing  that  is  there  is  not  so  sound. 

j 
*  Dando  a  quelli  che  a  i  detti  nimici  tolta  haveranno,  IJEVERAGGIO  conve- 

nUnte,  secondo  la  fatica  che  ne  hai-eranno  havuta,  e  secondo  il  danno  che  ne 
haveranno  sofferto.  Giving  to  the  recaptors  a  sufficient  beverage  or  drink- 
mor.ey,  in  proportion  to  their  labour  and  damage  suffered.  //  Conaol.  C..287. 
In  the  late  French  'translation  by  M.  Boucher,  it  is  c.  290.  §  1136.  T. 

^Anzi  debba  essere  tutta  di  loro.  II  Consol.  Ibid. — Fr.  Transl.  Ibid.  §  1138.  T 


TREATISE  ON  T1&  LAW  OF  WAR,  45 


CHAPTER  VI. 

Of  the  Possession  of  Immovables  taken  in  War. 

Til  7"E  must  now  consider,  for  the  subject  is  worthy  of  it, 

*  *      how  far  extends   the  possession  of  immovables  ac- 
quired in  war,  and  the  property  arising  out  of  such  posses- 
sion.   Grotius*  simply  says,  that  every  kind  of  possession 
is  not  sufficient,  but  that  it  must  be  a  firm  possession,  which  he 
explains  thus:  "  as  if  a  country  is  so  provided  with  permanent 
fortifications,  that  the  adverse  party  cannot  enter  it  openly 
without    first    making  himself  master  of  them  by   force." 
What  then  if  the  fortified  town  is  taken;  shall  the  country 
be   considered   as  taken   also,    and   for  how  long?    Grotius 
decides    absolutely  nothing    about    this,    and  yet  he  often 
proposes  this  question   when  he  speaks  of  the  capture  and 
occupation  of  places.  An  example  will  make  the  thing  more 
clear.  The  French  had  taken  Casaland  Turin  in  Piedmont;  a 
truce  was  afterwards  made,  during  which  it  was  agreed  that 
each  party  should  keep  what  he  had  taken  on  the  principle  of 
uti  possidetis.  A  question  was  made  about  the  territory  and 
villages  which  owed  services  and  duties  to  the  cities  which 
were  held  by  the  French. 

There  were  lawyers  who  decided  that  question  against  the 
French,  on  the  ground  that  the  law  of  nations  requires 
actual  possession,  acquired  by  natural  means,  and  that  the 
part  occupied  does  not  draw  along  with  it  the  part  not  oc- 
cupied. Therefore  they  were  of  opinion  that  the  obligation  of 
those  inhabitants  did  not  enure  to  the  use  of  the  French,  as 
the  citizens  themselves  submitted  to  their  dominion  against 
their  will.  It  is  thus  contended  by  Petrinus  Bellns,]  with 
whom  I  do  not  know  whether  Zouch  agrees.:):  But  I  think 
Bellus  was  mistaken:  he  was  certainly  so  in  the  case  of 

*  De  Jure  B.  ac  P.  1.  3.  c.  6.  §  4. f  De  re  miHtari,  part  5.  t.  3.  n.  7. 

*  De  Jure  Fee.  part  2.  §  9.  Q;  48. 


TREATISE  ON  THE  LAW  OF  WAR. 

a  truce  Jike  the  present,  because  the  general  words  utiposside- 
tls  embrace  an  implied  as  well  as  an  actual  possession.  That 
implied  possession  consisted  in  the  performing  and  receiving 
services  and  duties,  which  were  usually  rendered  only  to  the 
master;  but  what  actual  possession  is  will  be  seen  from  what 
I  am  about  to  say. 

Reason,  therefore,  is  to  point  out  to  us,  what  may  be  pro- 
perly called  a  possession  of  immovables,  taken  in  war,  which 
is  that  the  whole  is  occupied  and  possessed,  if  such  has  been 
the  intention  of  the  captor;  and  thus  Paul  defines  it  in  1.  3.  §  1. 
Jf.  de  Acquir.  vel  amitt.  rer.  pass.  That  this  is  not  a  principle 
merely  of  civil  law,  but  also  of  natural  law,  the  thing  itself, 
and  custom  which  is  an  excellent  teacher,  abundantly  demon- 
strate. Possession  extends  to  every  thing  that  is  occupied, 
and  what  is  occupied  is  placed  within  our  power  by  the  law 
of  nature;  but  even  that  is  considered  as  occupied,  which 
is  not  touched  on  all  sides  with  our  hands  or  feet,  if  the 
occupant  so  chuses,  or  the  nature  of  the  case  requires  it,  as  is 
the  case  with  lands.  On  another  principle  it  would  not  be 
easy  to  say  what  is  possessed  or  occupied,  for  if  every  thing  is 
to  be  touched,  it  is  not  even  sufficient  to  touch  the  surface  of 
the  land;  it  will  be  not  only  necessary  to  walk  round,  but  to 
dig  into  every  field. 

But  although  it  be  true,  that  a  part  being  taken,  the  whole 
is  taken,  when  the  taking  is  made  with  that  view  or  intent, 
yet  it  will  not  otherwise  obtain,  than  if  no  other  person  pos- 
sesses another  part  of  the  thing  in  question.  For  if  another 
possesses  a  part  of  the  same  whole,  he  would  by  the  same 
reason  possess  the  whole.  This  cannot  be  said  with  propriety, 
for  as  Paulus  very  truly  says  in  D.  1.  3.  §  5.  two  persons  can- 
not at  the  same  time  possess  the  whole  of  the  same  thing,  be- 
cause the  ownership  of  one  would  exclude  the  ownership  of 
the  other.  If  then  one  is  in  possession  of  a  thing,  and  another 
takes  a  part  of  it  which  the  other  does  not  corporally  oc- 
cupy, he  has  taken  nothing  but  what  he  has  occupied  by 
natural  means,  nor  can  the  thing  be  possessed  pro  rata^ 
in  proportion  to  the  parts  which  each  actually  occupies, 
because  the  possession  of  the  first  occupant  is  paramount,  and 


TREATISE  ON  THE  LAW  OF  WAR.  47 

cannot  be  excluded  by  another,  which  is  only  similar,  each  of 
them  having  the  same  force  and  effect  as  the  other.  And  the 
latter  occupant  has  done  away  what  is  called  the  legal 
possession  of  the  other  in  that  part  which  he  detains,  for  no 
.  other  reason  than  because  he  possesses  it  by  natural  means; 
for  the  natural  possession  has  taken  away  the  legal  one.  It 
is^  the  same  thing  that  Celsus  says  in  1.18.  §  4.  Jf.  Eod.  "  Si 
cum  magna  vi  ingressus  est  exercitus,  earn  tantum  mod» 
partem  quam  intraverit  obtinet.  If  an  army  has  entered  a 
territory  with  great  force,  it  has  possession  only  of  that  part  of 
the  country  which  it  has  entered  upon."  When  he  says,  -with 
great  force,  he  means  that  there  was  a  resistance  made,  and 
that  there  were  those  who  defended  by  force  the  possession  of 
the  first  owners.  An  army,  therefore,  does  not  further  occupy 
a  country  than  if  has  compelled  the  opposite  army  to  recede. 
,  Perhaps  Paulus  is  to  be  thus  understood,  in  D.  1.  3.  §  1.  when 
he  says  that  a  part  being  taken  with  intent  to  take  the  whole, 
the  whole  is  occupied,  but  to  a  certain  extent  only,  usque  ad 
terminum;  which  I  take  to  mean,  so  far  as  to  that  part  which 
another  possesses,  whether  it  be  a  neighbour  on  an  adjoining 
land,  or  some  other  person  on  the  very  land  which  is  contended 
for. 

Hence  it  is  not  difficult  to  discern  what  may  be  considered 
as  properly  occupied  in  an  occupied  country.  The  metro- 
politan law  of  itself  has  nothing  to  do  with  this  case,  for 
it  is  a  municipal  law  which  the  sovereign  may  establish 
wherever  he  pleases.  If  so,  it  is  easily  understood  that  if  from, 
the  occupation  of  a  strong  place,  dominion  is  exercised  over 
the  whole  country,  yet  by  that  occupation,  the  victor  is  not 
considered  in  possession  of  those  cities,  walled  towns  and  for- 
tresses which  the  sovereign  still  detains,  but  all  these  things  are 
to  be  judged  of  by  the  fact  itself  of  occupation  and  possession. 

According  to  this  principle  we  say,  that  if  a  part  of  a  coun- 
try be  occupied,  the  whole  is  considered  as  occupied,  if  the  van- 
quished party  has  retained  no  other  part  of  it;  but  if  he  has,  then 
nothing  is  occupied,  but  what  the  victor  has  taken  by  force 
from  the  vanquished,  and  is  actually  in  possession  of.  But  in 
regard  to  several  distinct  countries  under  the  dominion  of  the 


48  TREATISE  ON  THE  LAW  OF  WAR. 

same  prince,  it  may  be  asked,  whether  the  same  distinction  can 
apply,  which  is  used  with  regard  to  contiguous  private  estates? 
If  Titius  is  the  owner  of  three-contiguous  plantations,  A,  B 
and  C,  and  Gains  occupies  part  of  the  plantation  A,  he  will 
be  considered  as  occupying  the  whole  of  it,  but  not  the  planta- 
tions B  and  C.  For  when  we  possess  an  estate,  our  possession 
goes  as  far  as  its  extent,  or  its  boundaries,  but  no  fartherjyrm- 
do  enim  possesso,  ad  terminum  auidem,  sed  ad  terminum  dun- 
taxat,  neque  ultra  possidemits.  D.  1.  3.  §  ^'ff-  de  Acquir.  vel 
amitt.  rer.poss.  He  who  has  entered  on  part  of  the  plantation 
A,  is  not  supposed  to  have  entered  upon  it  with  any  other  in- 
tent than  to  possess  himself  of  the  whole  of  that  of  which  he 
has  occupied  a  part,  but  he  is  not  considered  as  having  thought 
in  the  least  of  the  manor  B  or  the  manor  C.  When  we  oc- 
cupy a  part  of  a  whole  which  is  distinguished  from  all  other 
things,  that  distinction  marks  the  boundaries  of  our  posses- 
sion, whether  it  be  a  house,  a  piece  of  land,  a  store  or  ware- 
house, or  any  other  thing  which  comes  under  the  denomina- 
tion of  immovable  property. 

But  in  my  opinion  there  is  another  principle  as  to  immo- 
vables which  are  occupied  by  right  of  conquest. 

The  intention  of  the  conqueror  is  not  merely  to  invade  one 
district,  but  the  whole  of  the  hostile  empire,  and  to  make  his 
own  all  the  countries  belonging  to  it.  Nor  is  there  here  any 
boundary,  but  that  part  of  the  country  which  the  vanquished 
still  retains.  If  there  is  nothing  that  the  conqueror  cannot 
possess,  if  he  pleases,  what  hinders  him  from  proceeding 
on  and  actually  possessing  the  whole?  If  no  one  district  is  re- 
tained by  the  vanquished,  the  occupation  of  a  single  one  by 
the  conqueror,  nay,  of  the  metropolis  alone,  will  give  him 
possession  of  the  whole  empire.  Here  we  must  acknowledge 
the  truth  of  what  the  ambassador  of  the  emperor  Justinian 
said  to  Chosroes,  king  of  Persia,  according  to  Menander  Pro- 
tector, Hist.  Byzant.  torn.  1.  p.  143.  'O  y«'p  jtriroeecs  'HytjttonxS, 
vZ  f  isx.  't%u  TO  ti7re£e£»ixe«?  Shall  not  he,  who  is  the  master  of  him 
who  commands,  also  be  the  master  of  what  is  subject  to  him? 
But  if  the  conquered  party  still  retains  something,  it  will  not 
be  considered  as  a  conquest  of  the  whole  of  his  dominions 


TREATISE  ON  THE  LAW  OF  WAR.  49 

that  his  metropolis  has  been  taken  and  is  occupied  by  force  of 
arms. 

Those  princes  therefore  have  justly  been  laughed  at,  who 
because  they  had  taken  Rome  or  Constantinople  arrogated  to 
themselves  the  whole  Roman  empire,  while  other  princes  oc- 
cupied several  large  parts  of  it.  Of  this  kind  was  the  arro- 
gance of  Belisarius,  as  related  to  us  by  Procopius,  de  BelloVan- 
dal.  1.  2.  c.  4.;  for  he,  after  Justinian  had  taken  Carthage  and 
her  king  Gelimer,  boasted  publicly,  that  every  thing  belonged 
to  him  which  Gelimer  possessed  in  Sicily.  Here  he  was  alto- 
gether wrong,  for  the  right  which  he  had  over  Carthage  and  the 
person  of  her  king,  could  not  transfer  to  him  the  possession  of 
what  was  in  Sicily.  Sicily  defended  itself  by  its  own  force, 
and  by  taking  the  king,  the  whole  of  his  dominions  was  not 
taken.  Actual  occupation  is  necessary,  or  a  cession,  if  it  be 
so  agreed  by  the  treaty  of  peace. 

Let  us  now  see  what  the  states-general  have  decreed  upon 
this  subject.  When  by  the  3d  section  of  the  truce  between  the 
archduke  of  Austria  and  the  states-general  of  the  9th  of  April 
1609,  it  was  agreed  that  each  should  continue  to  possess  what 
he  was  in  possession  of  at  the  time  of  the  truce,  and  the  arch- 
duke had  posted  up  his  edicts  in  the  territory  of  Kuyck,  which 
he  occupied,  the  states-general  on  the  20th  of  August  1609 
decreed,  that  that  territory  belonged  to  them,  because  they 
possessed  the  town  of  Grave,  to  which  it  was  subject,  .and 
prohibited  all  others  from  exercising  jurisdiction  therein. 
When  also  the  states-general  had  taken  some  fortresses  in 
the  Overmaze,  and  the  Spaniards  had  nevertheless  prohibit- 
ed the  inhabitants  from  submitting  themselves  to  the  juris- 
diction of  the  council  of  Brabant,  sitting  at  the  Hague,  the 
states,  by  way  of  retort,  opposed  that  interdiction  by  their 
edict  of  the  8th  of  March  1634.  Again,  when  Boisleduc  be- 
longed to  the  states-general,  and  the  Spaniards  made  great 
disturbances  respecting  the  territory  thereof,  the  states 
obviated  them  by  various  edicts,  viz.  of  the  20th  of  Ja- 
nuary and  3d  of  August  1630,  13th  of  May  1631,  20th  of 
June  1634,  2d  of  February  and  2d  of  December  1636,  and 
again  on  the  24th  of  December  1642,  in  which  edicts,  of  the 


50  TREATISE  ON  THE  LAW  OF  WAR. 

8th  of  March  1634,  and  2d  of  February  1636,  is  also  recited 
the  edict  of  the  king  of  Spam  of  the  10th  of  July  1628,  in 
which  that  sovereign  asserts,  at  great  length,  that  the  territory 
subject  to  a  town  follows  the  conquest  of  the  town  itself. 
The  states  availed  themselves  of  the  same  principle,  and 
very  properly  too,  because  those  are  considered  as  being 
in  possession  of  a  territory,  who  command  there  at  their 
pleasure.  But  if  there  is  in  that  territory  a  fortress  not  yet  oc- 
cupied, so  far  as  that  fortress  commands  the  territory,  the  pos- 
session and  dominion  of  the  occupier  of  the  remaining  part  of 
the  country  does  not  take  place. 

If  the  principles  which  I  have  contended  for  are  correct, 
as  indeed  they  appear  to  me,  the  council  of  Brabant,  which 
legislates  at  the  Hague  for  those  parts  of  Brabant  which  the 
states  have  taken  by  the  right  of  war,  has  justly  enacted  by  its 
edict  of  the  26th  of  October  1629,  that  the  investiture  of  the 
fiefs  situate  in  the  territory  of  Boisleduc,  was  to  be  asked  of 
them,  and  not  of  the  council  of  Brabant,  sitting  at  Brussels. 
And  it  also  appears,  that  the  king  of  Spain  had  no  right  to 
issue,  as  he  did,  a  contrary  edict  on  the  15th  of  November  1&%9, 
as  Aitzema  relates  in  detail.*  For,  by  the  capture  of  Boisle- 
duc,  the  whole  adjacent  territory  belonged  to  the  states- 
general,  and  therefore  they  were  the  lords  of  the  fiefs  situated 
there;  as  the  conquered  vassal  owes  fealty  and  services  to  the 
conqueror,  not  to  the  conquered  prince. 

There  is  still  less  doubt,  that  if  a  province  be  ceded,  all  its 
parts  are  ceded  likewise.  On  this  subject  there  is  extant  an 
edict  of  the  states-general,  of  the  22d  of  December  1610,  con- 
cerning Tzvent,  a  district  of  the  province  of  Over  TsseL 

*  Aitz.  b.  9. 


TREATISE  ON  THE  LAW  OF  WAR.  51 


CHAPTER  VII. 

Of  the  Confiscation  of  the  Enemy's  Actions  and  Credits* 

TF  there  are  treaties  between  princes  about  taking  away 
their  goods  within  a  certain  time  in  case  war  shall  take 
place,  several  of  which  treaties  I  have  above  mentioned,  c.  2.; 
it  is  true  that  they  may  remove  their  goods  and  effects  as  well 
as  their  actions  and  credits.  But  if  there  are  no  such  treaties, 
or  if  the  goods  and  actions  are  not  taken  away  within  a  limited 
time,  it  is  asked,  what  is  the  law  in  that  case?  And  surely,  such 
being  the  state  of  war,  that  enemies  are  on  every  legal  principle 
proscribed  and  despoiled  of  every  thing,  it  stands  to  reason- 
that  everything  belonging  to  the  enemy,  which  is  found  in  the  \ 
hostile  country,  changes  its  owner  and  belongs  to  thejfo<£.*  It  is 
besides  customary  in  almost  every  declaration  of  war  to  pro- 
claim that  the  goods  of  enemies,  as  well  those  found  among  us, 
as  those  taken  in  war,  shall  be  confiscated. 

There  are  also  now  extant  on  this  subject  separate  acts  of 
state,  whether  preceded  or  not  by  a  declaration  of  war.  The 
prince  of  Orange,  on  the  25th  of  August  1572,  inserted  in 
the  form  of  government  which  he  then  made  for  Holland, 
"  that  the  goods  of  all  those  who  acted  publicly  as  his  ene- 
mies, should  be  immediately  registered  by  the  magistrate  of 
the  place  where  they  were  found,  and  their  rents  and  profits 
should  be  taken  for  the  benefit  of  the  commonwealth."  I 
understand  this  to  apply  to  real  estates,  which  it  is  usual  to 
register,  that  the  rents  and  profits  in  time  of  war  may  go  to 
the  public.  If  we  follow  the  strict  law  of  war,  even  immo- 
vables  may  be  sold,  and  their  proceeds  be  lodged  in  the 
public  treasury,  as  is  done  with  movables;  but  throughout 
almost  all  Europe,  immovables  are  only  registered,  that  the 
treasury  may  receive  during  the  war  their  rents  and  profits. 

*  As  we  make  use  of  the  words  fiscal,  confiscate,  confiscation,  why  should 
we  not  adopt  in  America  the  \vovd.  fisk,  from 'the  Latin  fiscus,  which  is  the 
root  of  all  those  derivatives?  T. 


52  TREATISE  ON  THE  LAW  OF  WAR. 

At  the  termination  of  the  war,  the  immovables  themselves  are 
by  treaty  restored  to  their  former  owners. 

On  the  2d  of  April  1599,  the  states-general  again  issued  an 
edict  with  regard  to  all  kinds  of  enemy's  property,  wherever 
found,  which  is  in  these  words:  "  We  declare  lawful  prize  all 
persons  and  goods  situate  or  being  under  the  jurisdiction  of 
the  king  of  Spain,  wherever  the  same  may  be  taken."  There 
exists  also  a  letter  from  the  states-general  to  the  court  of 
Holland  dated  the  25th  of  November  1672,  by  which  they  are 
simply  ordered  to  detain  and  confiscate  the  goods  of  those  who 
reside  among  the  enemies,  on  which  there  issued  an  edict 
of  the  court  of  Holland  of  the  same  day,  declaring  that  the 
goods  could  not  be  restored  to  their  owners  after  the  date 
thereof.  I  am  not  now  inquiring  whether  this  be  agreeable  to 
the  treaty  made  in  the  year  1662,  between  the  states-general 
and  France.  But  as  estates  of  inheritance  are  principally  to 
be  included  under  the  denomination  of  goods,  (bond)*  it 
is  clear  that  an  enemy  cannot  acquire  such  an  estate  situate 
in  our  country,  even  though  it  came  to  him  by  succession 
or  by  will.  Agreeably  to  this  principle,  when  in  the  year 
1695,  a  person  died  intestate  in  Holland,  whose  next  of  kin 
and  heirs  at  law  were  in  France,  I  remember  that  the  inhe- 
ritance was  confiscated. 

As  the  edicts  which  I  have  recited  speak  in  general  terms, 
they  are  to  be  taken  to  apply  to  all  kinds  of  goods,  whether 
corporeal  or  incorporeal.  Of  incorporeal  goods,  however,  such 
as  actions  and  credits,  I  see  that  doubts  exist,  and  that  the 
states-general  themselves  have  doubted, f  nay,  and  have  some- 

*  At  the  civil  law  the  word  bona  includes  every  kind  of  property,  real, 
personal  and  mixed,  but  chiefly,  as  our  author  says,  applies  to  real  estates, 
chattels  being  generally  distinguished  by  the  words  effects,  movables,  &c. 
The  English  civilians  translate  the  word  bona  by  goods,  which  we  employ 
here  in  the  same  sense,  though  very  different  from  that  of  the  common 
law.  T. 

f  Not  only  doubts  have  been  entertained  on  this  subject  in  the  United 
States  and  Great  Britain,  but  the  two  governments  by  the  treaty  which  was 
made  between  them  in  1794  have  expressly  recognised  the  opposite  prin- 
ciple. By  the  tenth  article  of  that  treaty,  it  is  stipulated  "  that  neither  the 
debts  due  from  individuals  of  the  one  nation  to  individuals  of  the  other,  nor 
shares,  nor  moneys  which  they  may  have  in  the  public  funds  or  in  the  public 


TREATISE  ON  THE  LAW  OF  WAR.  53 

times  acted  in  contradiction  to  the  principle.  When  the  king 
of  France  and  the  bishops  of  Cologne  and  Munster,  in  the 
year  1673,  confiscated  even  actions,*  and  gave  orders  to  call 
in  what  their  subjects  owed  to  the  citizens  of  the  United 
Provinces,  the  states-general,  by  their  edict  of  the  6th  of  July 
1673,  reprobated  it,  and  decreed  that  payment  could  not  be 
made  but  to  the  true  creditor,  and  that  they  would  not  ratify 
such  an  exaction,  whether  made  by  force  or  by  consent.  But 
in  fact  it  appears  that  by  the  common  lawf  actions  may  be 
confiscated,  for  the  same  reason  that  corporeal  goods  may. 
Actions  and  credits  are  by  the  law  of  nations  not  less  under 
our  dominion  than  other  goods;  why,  therefore,  might  we 
pursue  these  and  not  those  by  the  law  of  war?  and  if  there  is 
no  ground  here  for  a  rational  distinction,  reason  alone  supports 
the  principle  of  the  common  law.  But  examples  and  authori- 
ties are  not  wanting  in  support  of  it. 

It  appears  from  Polybius,  Excerpt.  Legat.  c.  35.  n.  4., 
that  it  was  agreed  between  the  Romans  and  Antiochus,  that 
actions,  as  well  as  every  thing  else  which  had  been  confis- 
cated during  the  war,  should  be  restored.  Therefore  it 
follows,  that  actions  had  been  confiscated  on  both  sides. 
That  the  kings  of  France  and  Spain  also  exercised  this 
right  towards  each  other,  appears  by  the  twenty-second 
article  of  the  treaty  of  peace  made  between  them,  on  the 
17th  of  September  1678,  for  by  that  article  it  is  stipulated 
that  credits  which  have  been  actually  confiscated  shall  not 
be  restored.  And  the  king  of  Denmark,  having  declared 
war  against  the  Swedes,  did  on  the  9th  of  March  1676  issue 
an  edict  ordering  that  the  goods  of  Swedes  within  the  Da- 
rn private  banks,  shall  ever  in  any  event  of  war  or  national  differences  be 
sequestered  or  confiscated,  it  being  unjust  and  impolitic  that  debts  and 
engagements  contracted  and  made  by  individuals,  having  confidence  in  each 
other  and  in  their  respective  governments,  should  ever  be  destroyed  or 
impaired  by  national  authority  on  account  of  national  differences  and  dis- 
contents." T. 

*  Here  we  again  use  the  technical  language  of  the  civil  law.  The  common 
law  term  is  things,  or  chases  in  action.  T. 

f  The  civil  law  and  the  law  of  nations  are  very  frequently  styled  "  the 
common  law"  (jus  commune)  by  writers  on  the  continent  of  Europe.  They 
are,  in  fact,  in  many  respects,  the  common  law  of  the  civilized  world.  T. 


54  TREATISE  ON  THE  LAW  OF  WAR. 

nish  empire,  and  all  the  debts  due  to  Swedes,  should  be 
brought  within  six  weeks  into  the  public  treasury,  there  to  be 
confiscated,  under  a  penalty  of  double  the  value  and  discre- 
tionary punishment  against  those  who  should  not  obey.  The 
king  of  Denmark  had  decreed  something  similar  against  the 
English  in  1667,  as  is  related  by  Aitzema.* 

Nor  does  it  appear  that  the  Dutch  have  always  been  averse 
to  that  doctrine  from  the  edict  of  the  18th  of  July  1536, 
from  that  of  Philip  II.  against  the  French  of  the  27th  of 
March  1556,  and  that  of  the  states  of  Holland  of  the  29th 
of  January  1591.  There  is  also  an  edict  which  the  prince 
of  Orange  and  the  court  of  Holland  issued  on  the  7th 
of  December  1577,  under  the  assumed  name  of  Philip  II. 
king  of  Spain,  by  which  they  ordered  the  confiscation  of  all 
the  movable  and  immovable  property,  and  of  all  the  actions 
and  credits,  not  only  of  those  who  had  gone  over  to  Don  John 
of  Austria,  but  of  all  their  enemies.  The  states-general  also, 
on  the  4th  of  June  1584,  declared  those  of  Bruges  and  Vnje, 
who  had  gone  over  to  the  Spaniards,  to  be  their  enemies,  and 
ordered  all  their  goods,  actions  and  credits,  public  as  well  as 
private,  to  be  confiscated.  And  afterwards,  when  those  of 
Venloo  had  also  gone  over  to  the  Spaniards,  the  earl  of  Lei- 
cester, by  his  edict  of  the  9th  of  July  1586,  declared  them 
guilty  of  the  crime  of  high  treason,  and  ordered  all  their 
goods,  movable  and  immovable,  and  all  their  actions  and 
credits,  to  be  confiscated.  Nor  must  it  be  believed  that  these 
things  were  decreed  concerning  those  of  Bruges,  Vrye,  and 
Venloo,  merely  because  they  were  not  so  much  enemies  as 
they  were  traitors,  as  they  had  previously  bound  themselves 
by  the  confederation  of  Utrecht;  for  I  must  observe,  that  the 
penalties  of  the  edict  of  the  4th  of  June  1584  are  expressly 
applied  to  all  who  hold  themselves  to  be  our  adversaries,  in 
•whatever  manner  it  may  be,  precisely  as  in  the  abovemen- 
tioned  edict  of  the  7th  of  December  1577,  traitors  and  enemies 
are  classed  together,  as  to  that  particular  purpose. 

Under  this  head  are  also  to  be  noted  the  decrees  of  the  states- 
general  of  the  2d,  and  of  the  states  of  Holland  of  the  29th  of 

*  Aitz.  b.  47. 


TREATISE  ON  THE  LAW  OF  WAR.  55 

October  1590,  in  both  of  which  the  following  sentence  is  con- 
tained: "  That  those  who  come  into  these  provinces  out  of  the 
enemy's  territory,  although  provided  with  proper  passports, 
shall  not  be  qualified  to  bring  any  personal  or  real  action, 
either  in  the  petitory  or  in  the  possessory,  but  shall  be  dis- 
missed from  court,  in  order  that  hostility  against  the  ene- 
mies, and  the  confiscation  of  their  goods,  rights  and  actions, 
may  subsist  in  their  fullest  extent."  By  these  decrees  they  are 
not  permitted  to  bring  even  personal  actions,  and  the  reason 
publicly  given  for  it  clearly  shews  that  they  cannot  do  it, 
because  not  only  the  goods  of  enemies  but  their  actions  are 
liable  to  confiscation.  And  when  once  the  king  of  France  had 
ordered  the  goods  of  Dutch  subjects  to  be  seized,  the  states 
of  Holland,  on  the  26th  of  April  1657,  ordered  the  same  thing 
with  regard  to  the  goods  of  French  subjects,  and  prohibited 
any  body  from  paying  to  them,  on  pain  of  being  compelled 
to  pay  the  amount  a  second  time,  for  the  indemnity  of  the 
Dutch  subjects  who  had  suffered  by  the  seizure  of  their 
goods  in  France,  and  of  paying  moreover  half  the  amount  of 
the  debt  by  way  of  punishment,  and  they  ordered  the  goods 
and  credits  of  Frenchmen  to  be  brought  under  a  penalty  to 
certain  officers  appointed  in  each  town  for  that  purpose. 
Wherefore,  if  the  subject  of  a  prince  who  has  confiscated  the  (tf 
credits  of  his  enemies,  should  pay  to  his  government  what  he 
owed  to  the  enemy,  it  has  been  very  properly  held  that  he  is 
discharged. 

These  things,  however,  do  not  take  place  when  war  is 
carried  on  with  so  much  mildness  that  commerce  is  permitted 
on  both  sides:  for  there  cannot  be  any  commerce  without 
contracts,  contracts  without  actions,  actions  without  courts 
of  justice,  nor  courts  of  justice  without  parties  to  liti- 
gate before  them.  Who  will  sell  and  carry  goods  to  an  enemy 
without  the  hope  of  recovering  the  price  of  them?  and  what 
hope  can  there  be  of  recovering  that  price,  if  one  cannot  judi- 
cially compel  payment  from  his  enemy  purchaser?  Although, 
therefore,  an  enemy  has  no  persona  standi  in  jud'icio,*  as  it  is  » 

*  No  right  to  be  heard  as  plaintiff  in  courts  of  justice.  T. 


56  TREATISE  ON  THE  LAW  OF  WAR. 

simply  expressed  in  the  decrees  of  the  2d  and  29th  of  October 
1590,  and  although  it  has  been  thus  held  and  adjudged  in 
this  country  in  various  instances,  yet  the  case  of  commerce 
is  properly  excepted,  that  is  to  say,  when  there  is  a  mutual 
liberty  of  trade;  for  if  there  is  not,  actions,  though  arising 
out  of  commerce,  may  justly  be  confiscated.  But  is  the 
case  of  commerce  to  be  so'distinguished  from  all  other  cases, 
that  in  this  we  grant,  and  in  others  we  refuse  to  the  enemy 
the  persona  standi  in  judiciof  It  has  undoubtedly  been  so 
adjudged,  and  if  the  distinction  is  proper  here,  it  must  also 
obtain  as  to  the  confiscation  of  actions.  But  if  the  enemy  be 
once  permitted  to  bring  actions,  it  is  difficult  to  distinguish 
from  what  causes  they  arise,  nor  have  I  been  able  to  observe, 
that  this  distinction  has  ever  been  carried  into  practice. 

Moreover,  if  you  do  not  permit  your  enemy  to  bring 
actions,  neither  can  you  with  justice  suffer  them  to  be  brought 
against  your  enemy,  if  perchance  he  should  tarry  within  your 
territory,  and  thus  the  decree  of  our  supreme  senate,  of  the 
18th  of  September  1590,  confirming  the  sentence  of  the  infe- 
rior judge  and  of  the  court  of  Holland  is  unjust,  to  wit,  that 
an  enemy,  who  had  come  with  a  safe  conduct  into  this  country, 
might  be  arrested  and  held  to  bail  in  a  civil  action.  For  it  is 
manifestly  unjust  to  hinder  an  enemy  from  bringing  actions, 
(as  he  is  plainly  forbidden  by  the  said  decrees  of  the  2d  and 
29th  of  October  1590,)  and  not  to  allow  him  the  same  privi- 
lege. Whatever  right  one  arrogates  to  himself  by  the  law  of 
war,  he  must  also  allow  to  his  enemy. 

What  I  have  said  about  the  legality  of  confiscating  actions, 
obtains  only  in  case  the  prince  has  really  made  his  subjects 
pay  what  they  owed  to  the  subjects  of  his  enemies.  If  he  has 
exacted  it,  they  have  lawfully  paid,  if  not,  when  the  peace 
takes  place,  the  former  right  of  the  preditor  revives,  because 
the  occupation  which  is  had  by  war  consists  more  in  fact  than 
in  law.  Therefore  credits  not  exacted  are  in  some  manner 
suspended  during  the  war,  but  at  the  peace  they  return  to 
their  former  owners  by  a  kind  of  postliminy.  Upon  this  prin- 
ciple it  has  been  agreed  among  almost  all  nations,  that  actions 
which  have  been  confiscated  during  the  war,  and  have  been 


TREATISE  ON  THE  LAW  OF  WAR.  57 

called  in  by  the  sovereign,  are  considered  at  the  peace  as  lost, 
and  are  for  ever  extinct;  but  if  they  have  not  been  exacted 
they  revive  and  return  to  the  real  creditors.  It  was  thus 
agreed  by  the  fifth  article  of  the  treaty  of  peace  betwe  en.fr  t*/<?- 
rick  III.  king  of  Denmark  and  Charles  II.  king  of  England, 
of  the  31st  of  July  1667,  the  thirty-seventh  article  of  the 
treaty  of  peace  between  the  kings  of  Spain  and  England^  of 
the  21st  of  September  1667,  and  the  twenty-second  article  of 
the  treaty  of  peace  between  the  kings  of  France  and  Spain  of 
the  17th  of  September  1678,  which  twenty-second  article  I 
have  mentioned  above  in  this  chapter,  in  order  to  establish 
what  is  proved  by  the  said  5th  and  37th  articles,  that  actions 
have  not  less  than  other  goods  of  the  enemy  been  confiscated 
in  time  of  war,  and  have  often  been  exacted.* 

Let  it  not,  however,  be  supposed,  that  it  is  only  true  of 
actions  that  they  are  not  condemned  if  so  jure;  for  other  things 
also,  belonging  to  the  enemy,  may  be  concealed  and  escape 
condemnation.  So  that  it  has  been  very  properly  held  that 
those  things  which  we  had  in  the  enemy's  country  before  the 
war  began,  and  which  during  the  war  have  been  concealed, 
and  therefore  not  condemned,  if  they  are  afterwards  retaken 
by  our  countrymen,  do  not  become  the  property  of  the  re- 
captors,  but  return  to  the  former  owners. 

*  Vattel,  though  he  acknowledges  the  legality  of  confiscating  in  war  the 
enemy's  actions  and  credits,  yet  tells  us  that  a  more  liberal  practice  has 
generally  prevailed  in  modern  times.  "  Mais  aujourd'/mi,  I' wantage  et  la 
stirett  du  commerce  ont  engage"  tons  les  souverains  de  r Europe  a  se  relacher  de 
cette  rigueur.  But  at  this  day,  the  advantage  and  security  of  commerce  have 
induced  all  the  sovereigns  if  Europe  to  relax  from  this  severity."  Vatt.  Lata  of 
Nat.  b.  3.  c.  5.  §  77-  T 


58  TREATISE  ON  THE  LAW  OF  WAR. 


w 


CHAPTER  VIII. 

Of  Hostilities  in  a  neutral  Port  or  Territory. 

E  only  exercise  the  rights  of  war  in  our  own  territory, 
in  the  enemy's,  or  in  a  territory  which  belongs  to 
no  one.  If  we  take  the  enemy  in  our  own  territory,  and  he 
has  come  to  it  without  a  safe  conduct,  there  is  nothing 
that  prohibits  our  treating  him  in  a  hostile  manner.  To  enter 
the  territory  of  an  enemy,  and  there  to  make  captures,  is 
permitted  by  the  law  of  war.  The  same  may  lawfully  be  done 
on  the  high  seas,  as  being  the  territory  of  no  one.  But  he  who 
commits  hostilities  on  the  territory  of  a  friend  to  both  parties, 
makes  war  upon  the  sovereign  who  governs  there,  and  who 
by  his  laws  coerces  every  violence,  by  whomsoever  it  may  be 
committed.  Therefore  the  Carthaginians,  though  with  a 
superior  naval  force,  did  not  dare  to  attack  the  Romans  in  a 
port  of  the  king  of  Nwnidia,  as  Grothis  (after  Livy*)  relates 
in  1.  3.,  De  Jur.  Bell,  ac  Pac.  c.  4.  §  8.  n.  2.,  and  Zouch^ 
&e  Jur.  Fee.  part  2.  §  9.  Q.  7.,  transcribes  it  out  of  Grotius. 
Zouch  there  states  some  contrary  arguments,  but  Grotius 
had  already  mentioned  and  refuted  them. 

But  as  all  the  publicists  (without  any  exception  that  I  know 
of)  prohibit  the  use  of  force  in  the  dominions  of  another,  it 
deserves  to  be  considered,  whether  the  usage  of  nations  and 
the  edicts  of  our  princes!  and  states^  are  conformable  to 
this  opinion,  and  whether  on  this  subject  the  right  to  pursue 
ought  to  be  distinguished  from  the  right  to  attack?  To  bo  gin 
with  the  princes.  Philip  II.  king  of  Spaing  in  the  nautical  laws 

*  Lit,  1.  28.  c.  17. 

f  The  counts  of  Holland,  Who  were  the  sovereigns  of  that  province  before 
the  Dutch  revolution.  T. 

$  The  states -general  of  the  United  Netherlands,  and  the  provincial  states 
of  Holland.  T. 

§  Who  was  also  count  of  Holland,  and  sovereign  under  different  titles  of 
the  seventeen  provinces  of  the  Netherlands.  T. 


TREATISE  ON  THE  LAW  OF  WAR.  59 

which  he  gave  to  the  Belgians  on  the  last  day  of  October  1563, 
(tit.  1.  §  27.)  ordered,  on  pain  of  death,  that  no  violence 
should  be  done  on  the  sea,  by  reason  of  war  or  for  any  other 
cause,  on  his  subjects  or  allies,  or  on  foreigners,  within  sight 
from  land  or  from  a  port.  He  therefore  understood  the 
dominion  of  the  continent  to  be  extended  as  far  as  the  sight 
can  reach  from  the  shore,  and  there  are  authors  who  are  of 
that  opinion.  But  I  have  shewn  this  to  be  too  vague,  in 
the  second  chapter  of  my  Dissertation  de  Dommio  Marts, 
being  of  opinion  that  the  dominion  of  land  ends  where 
the  power  of  arms  terminates.  And  that  the  states-general 
and  the  states  of  Holland  were  of  the  same*  opinion,  I  think  I 
have  sufficiently  proved  by  the  two  decrees  made  concerning 
the  salute  at  sea,  quoted  in  the  said  chapter  2,  and  also  in 
chapter  4.* 

Certainly  it  is  by  no  means  lawful  to  attack  or  take  an 
enemy  in  the  port  of  a  neutral  who  is  in  amity  with  both 
parties.  If  it  be  done,  it  is  the  duty  of  the  neutral  state  to 
cause  the-  thing  taken  to  be  restored,  either  at  its  own  expense 
or  at  the  expense  of  the  injured  party.  That  it  should  be  done 
at  the  expense  of  the  latter  has  been  agreed  by  the  twenty- 
second  article  of  the  treaty  of  peace  between  the  common- 
wealth of  England  and  the  states-general  of  the  5th  of  April 
1654,  the  twenty-first  article  of  the  treaty  of  peace  between 
the  king  of  England  and  the  states-general  of  the  14th  of 
September  1662  and  again  by  the  29th  article  of  the  treaty  of 
peace  between  the  same  powers  of  the  31st  of  July  1667.  The 
same  is  stipulated  by  the  forty-eighth  article  of  the  commer- 
cial treaty  between  the  king  of  France  and  the  states-general 

f  The  states  of  Holland  decreed  on  the  3d  of  January  1671,  that  theifr 
ships  of  war  should  salute  those  of  other  sovereigns  on  their  coasts  within 
reach  of  the  cannon  of  batteries  and  forts,  precisely  in  such  manner  as  the 
government  of  the  country  should  require,  leaving1  it  entirely  to  its  discre- 
tion to  return  or  not  the  salute;  adding,  that  every  government  is  sovereign 
within  its  own  jurisdiction,  and  every  foreigner  is  a  subject  there.  Bynk.  de 
Dom.  Mar.  c.  2.  On  the  16th  of  May  1670  the  same  states  decreed  that  the 
Danish  fort  of  Croneborg  situate  on  the  shores  of  the  sound  in  the  Baltic  sea, 
should  be  saluted  in  such  manner  as  the  king  of  Denmark  should  require. 
Ibid.  c.  4.  T. 


60  TREATISE  ON  THE  LAW  OF  WAR. 

of  the  27th  April  1662,  but  there  is  no  mention  made  therein 
of  the  expenses  being  to  be  borne  by  the  injured  party,  which 
appears  to  me  to  be  very  unjust,  as  it  is  the  duty  of  the  sove- 
•  v'  reign  of  the  territory  to  revenge  the  injury  done  to  himself;  for 
it  is  an  injury  done  to  him  to  violate  a  port  which  is  equally 
open  to  all  his  friends.  And  what  if  he  who  committed  the  vio- 
lence goes  away  immediately?  Is  the  individual,  whose  vessel, 
perhaps,  has  been  taken,  to  make  war  at  his  own  expense? 
Therefore  the  mention  of  the  expense  is  properly  omitted  in 
the  thirty-fifth  article  of  the  treaty  of  commerce  which  was 
made  between  the  same  powers  on  the  10th  of  August  1678, 
iu  the  fortieth  article  of  the  treaty  of  commerce  between  the 
same  of  the  20th  of  September  1697,  and  again  in  the  thirty- 
ninth  article  of  the  treaty  of  commerce  between  the  same  of 
the  llth  of  April  1713,  for  later  treaties  are  generally  without 
any  further  examination  copied  from  the  former  ones,  as  we 
have  seen  just  now  to  have  been  the  case  with  the  English. 
Those  articles  of  treaties  between  France  and  the  states- 
general  only  stipulate  that  the  sovereign  of  the  port,  bay  or 
river  in  which  a  prize  shall  be  made  from  a  friend,  shall  use 
his  utmost  endeavours  that  the  captured  property  be  fairly 
and  justly  restored.  If  it  be  the  duty  of  the  sovereign  to  use 
his  utmost  endeavours  to  effect  that  purpose,  it  follows  that 
he  must  do  it  at  his  own  expense,  nay,  by  going  to  war,  if 
other  means  are  not  sufficient.  Such  is  the  law  which  is  ob- 
served among  all  nations,  and  there  is  no  other  reason  for  it 
than  that  it  is  not  lawful  to  commit  violence  within  the  terri- 
tory of  another,  and  that  ports,  bays,*  and  rivers,  are  also 
within  the  territory  of  the  sovereign  of  the  country.  Thus  the 
grand  duke  of  Tuscany,  in  the  year  1695,  caused  the  French, 

*  In  the  year  1793  the  British,  ship  Grange  was  captured  by  the  French 
frigate  L"  Ambuscade,  in  the  waters  of  the  bay  of  Delaware,  and  brought 
into  the  port  of  Philadelphia,  to  which  she  was  bound.  The  British  minister 
demanded  her  restitution  of  the  government  of  the  United  States.  In  vain 
did  the  French  minister,  M •  Ternant,  allege  that  the  bay  of  Delaware  was 
an  open  sea,  not  subject  to  the  exclusive  jurisdiction  of  the  American 
government.  His  arguments  had  no  effect,  and  the  Grange  was  very  pro- 
perly  restored.  T 


TREATISE  ON  THE  LAW  OF  WAR.  61 

who  had  taken  near  the  port  of  Leghorn  a  ship  of  the  powers 
allied  against  France,  who  were  friends  to  the  grand  duke, 
and  carried  her  into  that  port,  to  restore  her  immediately;  for, 
as  I  have  said,  the  sea  which  is  near  to  the  ports  of  a  sovereign 
is  a  part  of  his  territory.  These  principles  may  easily  be  ap- 
plied to  the  following  cases: 

In  the  year  1 639,  while  admiral  van  Tromp  was  blockading  in 
the  Downs  the  fleet  of  the  Spaniards,  who  were  in  amity  with 
England,  the  states-general,  on  the  21st  and  30th  of  September 
1639,  issued  decrees  by  which  they  ordered  him  "  to  destroy 
the  Spanish  fleet,  without  paying  any  regard  to  the  harbours, 
roads,  or  bays  of  the  kingdoms  where  it  might  be  found» 
even  though  the  English  should  make  resistance,"  and  the 
admiral  immediately  carried  that  order  into  execution,  and 
was  praised  and  approved  for  it  by  the  states-general,  as  is 
commemorated  by  Aitzema  in  various  places.* 

This  can  hardly  be  defended,  neither  can  the  conduct  of 
the  English,  who,  on  the  12th  of  August  1665,  took  some 
ships  of  our  East  India  company,  in  the  port  of  Bergen,  in 
Norway,]  not  without  great  indignation  in  the  Danes,  who 
repelled  the  English  with  all  their  might.  In  order,  however, 
that  the  case  of  van  Tromp  may  not  be  considered  as  too  out- 
rageous, two  things  are  to  be  attended  to;  the  one,  that  the 
English,  in  the  year  1627,  had  taken  out  of  Holland  a  ship  of 
the  king  of  France,  then  at  war  with  England,  but  in  amity 
with  the  states-general  4  the  other,  that  the  Spaniards  them- 
selves,  in  the  year  1631,  were  charged  with  having  committed 
hostilities  against  the  ships  of  the  states-general,  in  the  ports 
of  the  king  of  Denmark,  then  a  common  friend  to  both,  as  I 
read  in  Aitzema.^  Otherwise,  if  nothing  can  be  charged  that 
gives  just  cause  to  exercise  the  right  of  retaliation,^  it  is  ma- 
nifestly unjust  to  attack  an  enemy  in  the  port  of  a  common 
friend.  And  thus  the  states-general  decreed  in  the  year 

*  Aitz.  1. 19. f  Ibid.  1. 45,  6,  7 *  Ibid.  1.  7.  9. 19. 20. §  Ibid.  1. 11. 

If  But  see  page  33,  where  our  author  justly  contends  that  retaliation  is 
only  to  be  exercised  directly  against  the  enemy,  and  never  through  the 
injury  of  a  friend.  T. 


62  TREATISE  ON  THE  LAW  OF  WAR. 

1623,*  on  a  memorial  of  the  English  ambassador.  The  ships 
of  the  states-general  had  committed  hostilities  against  the 
ships  of  England,  in  the  river  Elbe,  a  neutral  river.  Great 
complaints  were  made  on  this  subject,  not  only  by  the  English, 
but  by  the  Hamburghers,  and  various  ambassadors  of  the 
Germanic  empire.f  As  to  the  complaints  of  the  English, 
they  could  easily  have  been  silenced,  by  reminding  them  of 
what  had  happened  the  preceding  year  at  Bergen,  in  Norway, 
but  it  was  not  so  with  the  others,  for  this  aggression  was 
solely  founded  on  the  right  of  retaliation.  Nor  can  it  be 
doubted  that  the  French  acted  very  unjustly,  when  in  the  year 
1 693  they  set  fire  to  certain  Dutch  ships  in  the  port  of  Lisbon, 
at  that  time  neutral,  which  the  king  of  Portugal  would  not 
either  permit  to  be  fired  at  nor  to  be  taken  away.  This  fact  I 
assert  from  my  own  memory. 

It  might  be  more  doubted,  whether  it  is  lawful  to  pursue  in 
the  heat  of  battle  an  enemy  met  with  on  the  high  seas,  into  a 
neutral  river,  station,  port  or  bay?  The  weight  of  argu- 
ment is  in  favour  of  permitting  it,  on  taking  certain  precau- 
tions which  I  shall  enumerate  by  and  by.  Such  certainly  was 
the  opinion  of  the  states-general  in  the  year  16234  when  they 
answered  to  the  English  ambassador  that  it  was  not  lawful  to 
commit  violence  in  a  neutral  port,  "  with  this  understanding, 
however,  that  it  was  hoped  his  majesty  would  not  take  it 
amiss,  if  any  Dunkirkers  were  met  with  on  the  high  seas,  that 
they  might  be  pursued  even  along  the  king's  coasts  and  into 
the  king's  ports."  The  same  opinion  of  the  states-general 
appears  expressed  in  their  decree  of  the  10th  of  October  1652,§ 
but  so,  however,  as  is  very  properly  added  in  it,  that  the 
castles  of  neutrals  be  spared,  even  though  violence  should  be 
committed  from  them,  and  that  the  enemies  also  be  spared, 
if  they  should  have  already  entered  the  neutral  ports.  Both  of 
these  exceptions  are  right,  for  it  is  better  to  suffer  within  the 
dominions  of  another  than  to  act,  and  if  we  act,  we  are  to  be 
very  careful  that  the  force  used  against  our  enemy  shall  not 

*  Aitz.  1.  3. f  Ibid-  1-  45,  6,  7. *  Ibid.  1.  3. §  Aitz.  1.  32. 


TREATISE  ON  THE  LAW  OF  WAR.  63 

hurt  our  friend.  If  therefore  two  fleets  fight  in  the  open  sea, 
I  do  not  pretend  that  the  conqueror  may  not  justly  pursue  the 
conquered  fleet,  even  though  it  should  be  driven  to  the  terri-  , 
tory  of  a  neutral.  But  I  approve  the  direction  of  the  states- 
general  in  their  decree  of  the  10th  of  October  1652,  to  abstain 
from  violence  in  the  port  itself,  because  violence  could  not  be 
done  there  without  danger  to  the  neutral.  On  this  principle  it 
is  not  lawful  to  begin  an  attack  on  the  sea  near  the  land,  within 
shot  of  the  cannon  from  the  fortresses,  but  it  is  lawful  to  <' 
continue  an  attack  already  commenced,  and  pursue  the 
enemy  into  a  jurisdictional  sea  even  close  to  the  land,  or  into 
a  river,  bay  or  creek,  provided  we  spare  the  fortresses,  though 
they  should  assist  the  enemy,  and  provided  there  be  no  kind  of 
danger  to  our  friends. 

From  facts  which  afterwards  took  place,  the  states-general 
appear  to  have  approved  even  thus  much;  for  when  in  the 
year  1654  a  Dutch  commander  met  an  English  vessel  on  the 
high  seas  and  pursued  her  flying  into  the  port  of  Leghorn, 
where  he  took  her  at  the  moment  she  was  coming  to  anchor, 
the  grand  duke  of  Tuscany  complained  of  it  to  the  states- 
general,  but  we  read  that  he  complained  in  vain.*  He, 
however,  afterwards  took  satisfaction,  by  condemning  the 
Dutch  vessel  that  had  made  the  pursuit  and  occasioned 
the  capture  of  the  English  one.f  Again,  when  the  Ostenders 
had  fired  at  a  Dutch  ship  which  was  pursuing  an  English 
vessel  into  the  port  of  Ostend,  the  states-general:}:  complained 
of  it  to  the  court  of  Spain  as  of  an  illegal  act,  because  the 
Dutch  ship  had  not  fired  at  the  English  vessel  in  the  port  of 
Ostend.  But  this  reason  is  not  good,  except  to  aggravate  the 
injury  done  to  the  Ostenders,  for  it  is  not  of  any  consequence 
what  kind  of  hostility  you  commit  on  your  enemy,  but  whe- 
ther you  attack  him  in  a  hostile  manner.  Upon  the  whole, 
it  appears  that  the  states-general  approved  both  the  pursuits 
that  I  have  mentioned,  because  the  force  was  begun  before. 

and  was  only  continued. 

f 

*  Aitz.  1. 4. t Ibid *  Aitz- l-  45 


$4  TREATISE  ON  THE  LAW  OF  WAR. 

The  law  is  the  same  at  land  as  it  is  on  the  sea;  so  that  there 
as  well  as  here  we  may  justly  pursue  an  enemy  flying  from  a 
recent  fight  into  the  dominion  of  another.  I  think  the  states- 
general  acted  in  conformity  with  this  opinion  when  they 
decreed,  in  1653,*  that  the  Lorrain  soldiers,  who  had  ravaged 
the  Dutch  dominions,  might  be  pursued  even  into  the  domi- 
nions of  the  king  of  Spain;  but  this  cannot  be  defended,  unless 
it  is  a  fresh  pursuit  from  a  conflict  or  devastation  imme- 
diately preceding.  Otherwise,  we  may  not  any  more  make 
use  of  the  territory  than  of  the  port  of  a  friend,  to  destroy 
our  enemy.  And  the  states-general  very  properly,  at  the 
request  of  the  king  of  France,  who  was  at  peace  with  the  king 
of  Spain,  forbade  upon  pain  of  death,  that  any  one  should 
commit  hostilities  against  the  Spaniards,  in  the  dominions  qf 
the  king  of  France.^ 

The  states-general  also  justly  complained  of  the  Spaniards, 
when  in  the  year  1666,  those  of  Munster  passed  through  their 
territory  to  commit  depredations  in  the  dominions  of  the 
states-general,  and  they  demanded  of  Spain  an  indemnity 
for  the  damage  which  they  had  suffered  from  them.  This 
demand}  might  have  been  just,  if  the  Spaniards  had  wil- 
lingly and  knowingly  "permitted  those  of  Munster  to  pass 
through  their  territory,  in  order  to  go  and  commit  depreda- 
tions; but  it  does  not  any  where  appear  that  the  case  was  so. 
If  they  knew  it,  it  was  their  duty  to  prevent  any  hostility  being 
committed  against  their  friends  from  their  territory. 

Therefore  I  do  not  approve  of  the  conduct  of  those  of 
Wolffenbuttel,  who,  in  the  year  1 700,  being,  as  is  said,  neutral, 
permitted  the  Saxons  to  commit  depredations  from  their  terri- 
tory on  those  of  Lunenburg,  and  in  like  manner  permitted  the 
allies  of  the  Lunenburgers  to  kill  the  Saxons.  At  the  utmost  it 
is  lawful,  after  a  recent  fight,  to  pvirsue  the  flying  enemy  into 
another's  dominion;  for  the  same  reason  that  Philip  II.  king  of 
Spain,  by  the  seventy-sixth  section  of  his  criminal  edict  of  1570, 
gave  permission  to  pursue  a  criminal  immediately  zr\<\Jlagrante 
HeKcto  into  a  territory  not  our  own.  But  it  is  one  thing  to  begin 

*  Aits.  1  3.3.— — t  Aitz.  L  ?. 1  Aitz.  1.  46. 


TREATISE  ON  THE  LAW  OF  WAR.  65 

a  hostility,  and  another  to  pursue  the  force  while  the  thing  is 
yet  warm.  For  it  is  not  a  new  doctrine,  that  an  act  lawfully 
begun  may  be  continued  where  it  would  not  have  been  lawful 
to  give  it  a  beginning.  In  short,  it  is  not  lawful  to  begin  force 
within  the  territory  of  a  neutral,  but  if  begun  out  of  that  ter- 
ritory, it  is  lawful  to  continue  it  there  in  the  heat  of  action, 
diimfervet  opus. 

Thus  it  seems  that  this  distinction  may  be  made  and  con- 
tended for  without  absurdity.  Yet  I  have  never  seen  it 
mentioned,  either  in  the  writings  of  the  publicists  or  among 
any  of  the  European  nations,  the  Dutch  only  excepted. 
Nevertheless,  reason  both  persuades  and  commands  it,  and 
it  is  made  use  of  in  other  analogous  cases.  If  we  attend  to  it, 
we  shall  without  difficulty  decide  on  the  following  fact:  A 
Spanish  ship  pursued  by  a  French  ship  (the  two  nations  being 
at  war)  fled  into  Torbay,  was  run  aground  there,  and  con- 
cealed her  cordage,  tackle,  sails,  &c.  in  the  houses  of  the 
inhabitants.  The  French  mariners  went  on  shore  and  took 
those  articles  from  the  houses  they  were  in,  and  carried  them 
on  board  of  their  own  ship.  Now  was  it  lawful  for  the  French 
to  attack  the  houses  of  the  English,  and  to  take  away  the 
things  that  were  protected  there?  It  could  not  be  done  without 
injury  to  the  English;  therefore  the  king  of  England  in  the 
year  1668  very  properly  ordered  every  thing  to  be  restored, 
and  recommended  the  prosecution  of  the  national  injury  to 
his  ambassador  in  France,  as  we  are  told  by  Aitzema.*  The 
same  author  relates!  other  complaints  of  the  English  for  the 
violation  of  their  ports  by  the  French,  and  informs  us  of  the 
damages  which  they  paid  therefor,  but  I  shall  not  particu- 
larise those  cases;  the  reader  will  judge  of  them  by  attending 
to  the  distinction  which  I  have  just  now  suggested,  if  he  is 
as  satisfied  with  it  as  I  am. 

•  Aitz.  1.  48.  f  I^ 


66  TREATISE  ON  THE  LAW  OF  WAR. 


CHAPTER  IX. 

Of  Neutrality. 

I  CALL  neutrals  (non  hastes*}  those  who  take  part  with 
neither  of  the  belligerent  powers,  and  who  are  not  bound 
to  either  by  any  alliance.  If  they  are  so  bound,  they  are  no 
longer  neutrals,  but  allies.  Grotius  has  called  them  middle  men, 
(medii)  1.  3.  De  J.  B.  ac  P.  c.  9.  Of  these  it  is  asked  what  is 
lawful  for  them  to  do  or  not  to  do  between  two  belligerent  par- 
ties? Every  thing,  perhaps  it  will  be  said,  that  it  was  lawful  for 
them  to  do  or  to  omit  doing  when  they  were  all  at  peace,  for  the 
state  of  war  does  not  seem  to  extend  farther  than  to  those  who 
are  at  war  with  each  other.  Does  reason  require,  will  you  say, 
that  the  enemies  of  our  friends  should  be  considered  as  our 
own  enemies?  If  not,  why  shall  not  our  friends  carry  to  their 
friends,  though  they  be  our  enemies,  those  things  which  they 
were  in  the  habit  of  carrying  to  them  before?  nay,  arms,  men, 
and  every  thing  else?  It  militates,  indeed,  against  our  own 
advantage,  but  we  are  not  considering  what  is  advantageous, 
but  what  is  reasonable.  The  injury  suffered  is  alone  the  cause 
of  the  war,  and  it  is  evident  that  that  injury  has  no  effect  be- 
yond the  person  of  him  who  has  suffered  it,  except,  that  if  he 
is  a  prince,  it  extends  also  to  all  his  subjects,  but  not  to  those 
who  arc  not  subject  to  his  dominion.  Whence  it  must  follow, 
that  my  friend's  enemy  is  not  my  enemy,  but  that  the  friend- 
ship between  us  subsists  precisely  as  it  did  before  the  war. 

•  It  is  remarkable  that  there  are  no  words  in  the  Latin  language  which 
precisely  answer  to  the  English  expressions,  neutral,  ntutrality;  for  neutralis, 
ncutralitas,  which  are  used  by  some  modern  writers,  are  barbarisms, 
not  to  be  met  with  in  any  classical  author.  These  make  use  of  the  words 
amid,  medii,  pacatl,  which  are  very  inadequate  to  express  what  we  under- 
stand by  nt'utraU,  and  they  have  no  substantive  whatever  (that  we  know  of) 
for  neutrality.  We  shall  not  here  inquire  into  the  cause  of  this  deficiency. 
Such  an  inquiry  would  carry  us  too  far,  and  docs  not  comport  with  tlx- 
object  of  this  work  7'. 


TREATISE  ON  THE  LAW  OF  WAR.  57 

We  find  that  the  counsellors  of  the  states-general  adopted 
this  doctrine,  when  on  the  3d  of  March  1640  the  states  issued 
an  edict  on  their  report,  declaring  that  agreeably  to  ancient 
custom  and  to  the  law  of  neutrality,  it  was  lawful  for  neutrals 
to  fight  for  us  or  for  our  enemies  as  they  might  think  proper. 
And  when  the  Spaniards,  on  the  30th  of  March  1639,  issued 
an  edict  declaring  that  if  any  of  the  people  of  Liege  had  enlisted 
in  the  service  of  the  states-general,  they  should  return  within 
one  month,  having  first  taken  an  oath  that  they  would  no 
more  fight  against  Spain  or  the  house  of  Austria,  otherwise, 
every  pardon  would  be  denied  to  them,  a  similar  edict  was 
made  in  retaliation  on  the  3d  of  March  1640,  in  the  name  of 
the  states-general,  of  which  I  remember  that  it  was  to  be  in 
force  as  long  as  that  of  Spain,  which  in  the  said  edict  of  the 
3d  of  March  164O  was  represented  as  an  innovation,  entirely 
devoid  of  reason,  and  stigmatized  in  these  words:  "  an  un- 
reasonable edict — such  novelty  and  unreasonableness — so  long- 
as  the  Spaniards  shall  continue  in  force  their  unreasonable 
edict ,"&c.  Such  also  was  the  opinion  of  certain  Dutch  citizens, 
expressed  in  the  states  of  Holland,  on  the  26th  of  February 
1684,  when  they  urged  the  sending  of  auxiliary  troops  to  the 
Spaniards,  to  be  employed  against  the  French,  which  they 
said  could  be  done  without  injury  to  the  peace  then  subsisting 
with  France,  saha  pace  et  amicitid  cum  Francis. 

But  certainly  this  opinion  is  not  to  be  approved,  if  we  speak 
of  those  who  are  simply  neutrals.  It  is  their  duty  to  be  every 
way  careful  not  to  intermeddle  at  all  with  the  war,  and  not 
to  do  more  or  less  justice  to  one  party  than  to  the  other.  It 
is  the  same  thing  that  we  read  in  Livy,  b.  35.  c.  48.  Bella  se 
non  interponant,  let  them  not  intermeddle  with  the  war,  that 
is  to  say,  in  causa  belli,  as  to  what  relates  to  the  war,  let 
them  not  prefer  one  party  to  the  other,  and  this  is  the  only 
proper  conduct  for  neutrals.  I  do  not  know  whether  what 
Grotius  says,  De  J.  B.  ac  P.  c.  7.  §  3.,  will  be  satisfactory: 
"  The  duty  of  those,  says  he,  who  abstain  from  the  war, 
is  to  do  nothing  by  which  he  who  supports  an  unjust  cause 
shall  be  made  stronger,  or  whereby  the  motions  of  him 
who  carries  on  a  just  war  may  be  impeded."  If  I  judge 


6g  TREATISE  ON  THE  LAW  OF  WAR. 

rightly,  a  neutral  has  nothing  at  all  to  do  with  the  justice  or 
injustice  of  the  war,  it  is  not  for  him  to  sit  as  judge  between 
his  friends  who  are  at  war  with  each  other,  and  to  give  or 
deny  more  or  less  to  the  one  or  to  the  other  as  he  thinks  that 
their  cause  is  more  or  less  just  or  unjust.  If  I  am  a  neutral,  I 
cannot  be  useful  to  one  that  I  may  hurt  the  other,  alteri  non 
possum  prodesse,  ut  alteri  noceam. 

But,  will  you  say,  may  not  I  send  to  each  of  them  whatever 
I  may  think  proper?  It  is  what  friendship  requires.  If  one 
power  makes  use  of  what  I  shall  send  him  for  the  destruction  of 
the  other,  what  is  that  to  me?  But  you  must  not  adopt  such 
an  opinion:  you  must  rather  believe,  that  the  enemies  of  our 
friends  are  to  be  considered  in  two  points  of  view;  either  as 
our  friends;  or  as  the  enemies  of  our  friends.  If  we  consider 
them  only  as  our  friends,  then  it  is  proper  to  assist  them 
with  advice,  soldiers,  arms,  and  all  that  they  may  want  to 
carry  on  the  war.  But  inasmuch  as  they  are  the  enemies  of 
our  friends,  it  is  not  lawful  for  us  to  do  so,  because  we 
thus  would  prefer,  in  causa  belli,  one  of  them  to  the  other; 
and  this  the  equality  of  friendship,  which  is  first  to  be  attended 
to,  forbids.  It  is  more  important  to  preserve  friendship  with, 
both,  than  by  favoring  one  of  them  in  causa  belli,  thus  tacitly 
to  renounce  the  friendship  of  the  other. 

And  indeed,  what  I  have  just  now  said  is  not  only  con- 
formable to  reason,  but  to  the  usage  admitted  by  almost  all 
nations.  For  although  it  be  lawful  for  us  to  carry  on  trade 
with  the  enemies  of  our  friends,  usage  has  so  ordered  it,  as  I 
shall  shew  more  at  large  in  the  next  chapter,  that  we  should 
not  assist  either  of  them  with  those  things  by  which  the  war 
against  our  friends  may  be  carried  on.  It  is  therefore  un- 
lawful to  carry  to  either  party  those  things  which  are  neces- 
sary in  war,  such  as  cannon,  arms,  and  what  is  most  essen- 
tially useful,  soldiers;  nay,  soldiers  are  positively  excepted 
by  the  treaties  of  various  nations,  and  sometimes  also  ma- 
terials for  building  ships,  which  might  be  used  against  our 
friends,  have  been  excepted.  Provisions  likewise  are  often 


TREATISE  ON  THE  LAW  OF  WAR.  69 

excepted,  when  the  enemies  are  besieged  by  our  friends, 
or  are  otherwise  pressed  by  famine.*  The  law  has  very 
properly  forbidden  our  supplying  the  enemy  with  any  of 
those  things;  for  it  would  be,  as  it  were,  making  war 
against  our  friends.  Therefore  if  we  consider  the  bellige- 
rents merely  as  our  friends,  we  may  lawfully  carry  on  trade 
with  them,  and  carry  to  them  any  kind  of  merchandize, 
but  if  we  consider  them  as  the  enemies  of  our  friends v 
those  merchandizes  must  be  excepted,  by  means  of  which 
they  might  injure  those  friends;  and  this  reason  is  stronger 
than  the  former,  for  in  whatever  manner  we  may  assist  one 
against  the  other,  we  do  interfere  in  the  war,  which  is  not 
consistent  with  the  duties  of  neutrality.  From  these  reasons 
may  be  seen  which  had  the  most  justice  on  its  side,  the 
edict  of  the  Spaniards  of  the  3Oth  of  March  1639,  or  that  of 
the  states-general  of  the  3d  of  March  1640,  of  both  of  which 
I  have  spoken  above. 

Thus  I  have  shortly  laid  down  what  has  appeared  to  me  to 
be  the  duty  of  those  powers  which  are  not  bound  by  any  alli- 
ance, but  are  in  a  state  of  perfect  neutrality.!  These  I  have 

*  It  was  probably  on  the  principle  which  this  vague  word  otherwise  seems 
to  indicate,  that  the  British  government  issued  their  provision  order  against 
France,  or  rather  against  neutrals,  on  the  8th  of  yune,  and  signed  their 
convention  with  Russia,  on  the  25th  of  March  1793.  If  such  is  the  strict  law 
of  nations,  we  must  again  repeat  what  we  have  said  in  a  former  note,  that 
it  is  very  nearly  allied  to  barbarism.  T. 

•(•  There  are  two  kinds  of  neutrality,  which  some  writers  distinguish  by 
tlie  words  perfect  and  imperfect,  and  others  by  absolute  and  qualified.  Absolute 
neutrality  is  when  the  neutral  is  bound  to  neither  of  the  belligerents  by  a 
treaty,  the  execution  of  which  may  affect  the  other  in  case  of  war,  other- 
wise, his  neutrality  is  no  longer  absolute,  but  qualified.  Thus  if  a  neutral  is 
bound  by  treaty  to  admit  the  prizes  of  one  party  into  his  ports  and  not  those 
of  the  other.  At  the  beginning  of  the  war  of  1793  the  United  States  were 
neutrals  between  France  and  Great  Britain,  and  so  our  government  declared 
them  to  be  by  that  proclamation  which  at  the  time  excited  so  much  sensa- 
tion; our  neutrality,  however,  was  not  absolute;  it  was  qualified  by  the  trea- 
ties made  with  France  in  1778,  which,  independent  of  the  mutual  guaranties 
and  eventual  alliance,  contained  several  articles  that  applied  only  to  a  time 
of  war.  Between  a  qualified  neutrality  and  an  alliance  there  are  many  shades, 
and  it  is  often  difficult  to  draw  the  line  which  separates  the  one  from  the 
other.  Our  author,  however,  seems  here  to  confound  them  together,  and  t* 
consider  every  qualified  neutrality  as  an  alliance.  T 


70  TREATISE  ON  THE  LAW  OF  WAR. 

simply  called  neutrals,  in  order  to  distinguish  them  from  allies 
and  confederates.  If  the  doctrine  which  I  have  contended  for 
be  correct,  I  cannot  agree  to  the  principle  which  I  have  seen 
advanced  by  many  writers  upon  public  law,  to  wit,  that  I  may 
and  ought  to  support  and  assist  that  one  of  my  friends  whose 
cause  appears  to  me  the  best  and  the  most  just,  not  only  by 
supplying  him  with  military  stores,  but  by  going  openly  to 
war  for  him,  if  the  case  require  it.  This  is  not  correct,  for  it  is 
never  right  to  interfere  with  the  business  of  others.  When 
neither  of  my  friends  has  entered  into  any  engagement  with 
me,  why  shall  princes,  who  are  independent,  and  masters  of 
their  own  actions,  stand  or  fall  by  my  judgment?  It  does  not 
belong  to  me  to  avenge  the  injuries  of  every  sovereign;  it 
is  sufficient  if  I  avenge  my  own,  and  those  of  my  allies.  If, 
however,  the  injury  done  to  another  is  such,  that  I  may  fear 
for  myself,  and  there  be  no  other  hope  left,  but  of  being  the 
last  devoured,  it  may  perhaps  be  admitted,  that  I  ought  to 
assist  my  oppressed  friend;  for  it  cannot  be  otherwise  than 
impious  to  make  war  upon  a  friend,  while  he  continues  to  be 
called  such, and  unless  your  friendship  with  him  has  been  first 
dissolved. 

As  to  allies  and  confederates,  the  thing  is  quite  different. 
If  two  sovereigns  with  whom  I  am  allied,  are  at  war  with 
other  nations,  I  shall  administer  to  both  the  succours  which  I 
am  bound  to  give  by  treaty;  but  if  they  are  at  war  with  each 
other,  shall  I  assist  both,  or  only  one  of  them,  and  which  of 
them  in  preference?  On  this  question  the  interpreters  of  the 
law  are  at  variance  with  each  other,  not  less  so  than  nations 
themselves.  Gentilis,  De  Jure  Belli,  1.  3.  c.  18.  relates  various 
opinions,  and  adds  his  own;  Grotius,  De  Jure  Bell,  ac  P.  1. 
2.  c.  15.  $  13.,  and  after  him  Zouch,  De  "Jure  Fee.  part  2. 
§4.  Q.  28.,  lay  down  various  distinctions.  Certainly  auxiliary 
troops  shall  not  be  sent  to  each  ally,  even  though  they  be  due 
by  treaty;  for  it  would  be  most  absurd  to  send  my  soldiers  to 
both,  that  they  may  fight  against  each  other.  Those  who  hire 
out  their  soldiers  are  often  in  that  predicament,  but  this  does 
not  belong  to  the  present  disquisition.  As  to  myself,  I  think 
that  whether  my  allies  are  at  war  with  a  foreign  nation,  or 
with  each  other,  the  only  thing  to  be  distinguished,  is  which 


TREATISE  ON  THE  LAW  OF  WAR.  71 

of  the  two  has  the  most  just  cause  of  going  to  war.  If  they 
are  both  engaged  in  a  just  war  with  foreigners,  I  shall  render 
to  both  that  aid  which  I  am  bound  by  treaty  to  give:  if  only 
one  of  them,  I  shall  deny  it  to  the  other.  If  two  of  my  allies 
are  at  war  with  each  other,  I  shall  perform  the  obligation  of 
my  treaty  with  respect  to  him  who  has  the  best  cause,  of 
which  I  shall  be  myself  the  judge,  as  you  will  hear  by  and  by. 
And  thus  we  may  easily  do  without  the  opinions  and  distinc- 
tions of  others. 

But  what  if  I  have  promised  succours  to  my  ally  and  con- 
federate, and  he  is  at  war  with  my  friend?  I  think  that  pro- 
mises are  to  be  performed,  and  may  be  performed,  because 
allies  constitute,  as  it  were,  one  society  to  be  defended  by  mu- 
tual assistance.  But  here  I  must  distinguish,  whether  my  ally 
has  received  an  injury,  or  has  inflicted  one;  if  he  has  received 
it,  I  shall  perform  my  promise:  if  on  the  contrary  he  is  the 
aggressor,  I  shall  not  perform  it,  because  I  am  not  bound  to 
assist  my  ally  in  an  unjust  cause.  But  whether  the  cause  be 
just  or  unjust,  is  to  be  determined  by  the  judgment  of  the  par- 
ty bound.* 

I  wish  indeed,  that  what  I  have  said  of  the  justice  and  in- 
justice of  a  cause,  was  clearly  and  roundly  expressed  in  trea- 
ties between  nations;  but  those  which  I  have  seen  simply  ex- 
press, that  the  one  ally  shall  furnish  to  the  other,  when 
attacked,  so  many  naval  or  land  forces,  and  no  more  is  said. 
But  when  the  treaties  say  rvhen  attacked,  there  can  be  no 
other  interpretation,  but  that  succours  are  to  be  given  to 
that  ally,  who  is  unjustly  made  war  upon;  to  him  who  is  at- 
tacked by,  not  to  him  who  attacks  the  enemy.  However, 
I  do  not  find  that  expression,  when  attacked,  sufficiently 
clear.  For  what  if  he  who  is  attacked  should  have  done  an 
injury  to  the  other,  and  thus  have  afforded  him  a  cause  of 

*  Our  author  seems  here  to  be  at  variance  with  himself.  See  the  prece- 
ding page  and  page  66,  where  he  says  that  "  a  neutral  has  nothing  at  all 
to  do  with  the  justice  or  injustice  of  the  war,"  belli  justitia  NIHIL  QJJIC- 
^_UAM  pertinet  ad  communem  amiciim.  Much  less  does  it  concern  an  ally,  ov 
one  who  is  bound  by  the  solemn  engagements  of  a  treaty.  See  oil  this  subject 
the  able  reasoning  of  Lord  Hawkesbury,  in  his  Discourse  on  the  conduct  of  the 
government  of  Great  Britain  in  respect  to  neutral  nations.  Lond.  edit.  1794,  p. 
68.  T- 


* 


72  TREATISE  ON  THE  LAW  OF  WAR. 

war?  shall  I  send  succours  to  that  unjust  ally?  No,  I  shall  not. 
It  should  be  said  then,  that  to  him  who  is  unjustly  attacked, 
succours  should  be  sent,  as  likewise  to  him  who  has  not 
afforded  a  cause  of  hostility,  and  whose  fault  or  injury  has 
not  begun  the  war.  Although,  however,  it  be  not  openly  ex- 
pressed, that  exception  is  always  tacitly  understood  in  treaties, 
which  Grotius  has  proved,  De  Jure  B.  ac  P.  1.  2.  c.  15.  §  13. 
n.  1.,  and  I  do  not  know  any  who  differ  from  him.* 

He  who  has  promised  succours,  and  he  alone,  as  I  have  just 
now  said,  judges  also  of  the  justice  of  the  cause,  and  whether  the 
casusfcederis,  as  is  commonly  said,  has  taken  place  or  not.  For 
the  contracting  parties  are  not  in  the  habit  of  submitting  that 
to  the  decision  of  arbitrators;  which  indeed  would  be  very 
right,  as  treaties  might  not  then  be  made  sport  of,  as  they  now 
are.  Otherwise,  who  is  there,  who  will  not  interpret  treaties 
as  he  may  think  will  suit  best  his  own  interest?  who  will  not 
evade  them  by  a  false  interpretation?!  The  ancient  Greeks  and 
Romans,  even  in  public  matters,  often  left  the  justice  or  injus- 
tice of  their  cause  to  be  determined  by  others,  as  is  proved  by 
many  examples  quoted  by  Grotius,  1.  2.  c.  25.  §  4.;  and  it  was 
right  to  do  so.  But  this  part  of  the  law  of  nations  is  now  dis- 
used, and  hence  hardly  any  thing  now-a-days  remains  of  trea- 
ties but  an  empty  name. 

This  is  only  applicable  to  treaties  made  before  the  break- 
ing out  of  the  war,  by  which  supplies  have  been  promised;  for 
in  my  opinion,  after  the  beginning  of  the  war,  succours  cannot 
be  properly  promised  or  sent  to  either  friend,  and  he  who  will 
promise  or  send  them  to  one,  will  violate  his  neutrality  with 
the  other. 

As  to  those  states  which  are  tributary  to  us  or  under  our 
protection,  they  constitute  a  kind  of  intermediate  description 
of  states;  for,  from  the  very  nature  of  protection,  they  are  not 
considered  as  enemies,  nor  also  as- subjects,  as  they  belong  to 
another  prince.  They  may  therefore  assist  their  sovereign, 
though  he  is  our  enemy,  but  not  with  arms  and  men,  wherewith 

•  See,  however,  the  notes  in  the  preceding  page  and  page  75.  T. 

\  Does  not  this  militate  against  our  author's  doctrine  in  the  preceding 
paragraph?  See  notes,  p>  71.  75.  T. 


• 

TREATISE  ON  THE  LAW  OF  WAR.  73 

%-  he  may  make  war  upon  us.  Therefore  the  counsellors  of  the 
states-general,  on  the  17th  of  March  1641,  and  afterwards  on 
the  1 8th  of  July  1 746,  very  properly  decreed,  that  those  of 
the  territories  of  Luxemburg  and  Namur,  who  were  under  the 
protection  of  the  states,  and  generally,  on  the  14th  of  August 
1645,  that  no  neutral  under  our  protection  should  fight  for  the 
king  of  Spain,  even  though  he  had  fought  for  him  before,  and 
that  no  one,  who  had  quitted  the  service  should  be  recalled 

;  into  it.  The  same  counsellors,  on  the  23d  of  February  1636, 
issued  an  edict,  that  none  of  those  who  were  under  our 
protection  should  assist  the  enemy's  camps  with  horses, 
wagons,  or  ships:  and  very  properly,  because,  by  acting  thus, 
they  would  have  afforded  assistance  to  the  enemy.  The  law 
is  different,  as  to  those  things  which  are  carried  to  an  enemy, 
for  other  purposes  than  for  war;  and  therefore  the  states- 
general,  although  they  had  before  generally  prohibited  the  ex- 
portation of  corn,  decreed  however,  on  the  23d  of  May  1631, 
that  those  who  were  under  our  protection  might  carry  their 
corn  to  the  Spaniards  or  to  the  United  Dutch,  as  they  might 
think  proper.  For  a  neutral  may  lawfully  carry  corn  to  an 
enemy,  except  in  case  of  a  siege  or  famine. 

The  states-general,  by  the  third  section  of  their  edict  of  the 
26th  of  September,  1590,  prohibited  the  treating  of  neutrals, 
their  vessels  and  goods,  in  a  hostile  manner,  even"  though 

^  found  in  the  enemy's  territory,  provided  they  were  bound  to 
the  United  Provinces,  or  thence  to  other  places.  Yet  there  are 
those  who  have  written,  as  if  the  states-general  on  the  15th  of 
December  1672,  had  decreed  by  a  general  law,  that  even  neu- 
tral vessels,  when  coming  from  enemy's  ports  might  be  law- 
fully condemned.  But  no  credit  is  to  be  given  to  those 
wretched  scribblers;  for  the  fact  is  that  the  edict  of  the 
15th  of  December  1672,  was  a  special  one,  and  made  merely 
by  way  of  retaliation  for  the  condemnation  of  the  Hamburg 
ship,  as  I  have  before  shewn  in  chapter  5. 


74  TREATISE  ON  THE  LAW  OF  WAR. 


CHAPTER  X. 

Of  Contraband. 

IT  was  formerly  a  capital  crime  at  Rome  to  sell  arms  to* 
the  barbarians;*  that  is  to  say,  it  was  capital  in  the  subjects 
of  the   empire,    for  whom    alone   the  Romans  made   laws. 
And  it  is  now  certainly  so  in  every  country,  for  a  subject 
to  carry  arms  to   an  enemy.    Nay,    by  the  first   section  of 
the   edict   of   the    states-general    against  England,    of    the*-  '* 
5th  of  December  1652,    not  only  every  subject,   but  a  fo- 
reigner who  should  carry  any  kind  of  merchandize  to  the 
English,  is  to  be  considered  as  an  enemy.  Which  by  the  se-u  • 
cond  section  of  the  edict  of  the  states-general  against  the  Par  -A » 
tuguese,  of  the  31st  of  December  1657,  is  justly  restricted  to* 
contraband  goods.  By  the  1st  section    of  the  edict  of  thef     \ 
states-general  of  the  14th  of  August  1672,  and  llth  of  April 
1673,  against  the  English  and  French,  and  the  1st  section  of\/ 
the  edict  of  the  19th  of  March  1665,  against  the  English, 
is  punished  as  an  enemy  to  the  state,  who  carries  to  the  h 
nation  any  warlike  ammunition,  provisions,  materials  for 
building  of  ships,  or  any  other  prohibited  merchandize.  Itj 
is  the  same  with  a  foreigner  who  carries  those  goods  to  the 
enemy  from  this  country. 

But  the  states-general  as  well  as  every  other  prince  may    % 
make  what  laws  they  please  with  respect  to  their  subjects; .. 
not  so  with  respect  to  foreigners.  Hence  it  is  properly  asked    ,... 
what   is  lawful  for  us  by  the  law  of  nations  to  carry  to  theV: 
enemies  of  our  friends,  or,  what  is  the  same  thing,  what  may  * 
our  friends  lawfully  carry  to  our  enemies?  Whatever  is  not? 
lawful  to  be  carried,  if  the  friend  take  it,  he  may  lawfully  coh-if 

*  Cod,  qux  res  export,  non  deb.  1.  2 


TREATISE  ON  THE  LAW  OF  WAR.  75 

Iiscate,  and  by  that  confiscation  alone,  the  whole  penalty  of  ^x 
,*he  law   is  satisfied.    Grotius,  de  Jure  fe.  ac  P.  1.  3.  c.    1. 
5.  n.  1,  2,  3.,  being  engaged  in  the  consideration  of  this  sub- 
ct,  distinguishes  between  those  things  that  are  useful  for  )  v 
purposes  of  war,  those  which  are  not  so,  and  those  which  }  v 

be  used  indiscriminately  in  war  and  in  peace.  The 
hrst  he  prohibits  neutrals  from  carrying  to  our  enemies,  the 
J^econd  he  permits,  the  third  he  sometimes  prohibits,  and^ 
,  yometimts  permits.  If  we  adopt  the  principles  which  we  have 
contended  for  in  the  preceding  chapter,  we  cannot  be  much 
at  a  loss  with  regard  to  the  first  and  second  class  of  arti- 
cles. As  to  the  third  class,  Grotms  distinguishes,  and  permits 
ihe  intercepting  of  things  of  promiscuous  use,  but  in  case  of 
'Necessity  only,  when  otherwise  we  cannot  protect  our  own,  and 
then  under  the  obligation  of  restitution.  I  shall  only  ask  here 
who  is  to  be  the  judge  of  that  necessity,  for  it  is  very  easy  to 
Ilege  it  as  a  pretext:  Shall  it  be  I,  who  have  taken  the  arti- 
[es?  Such,  I  think,  is  his  opinion.  But  all  laws  prohibit  my 
itting  as  judge  in  my  own  cause,  unless  so  far  as  custom,  the 
>rince  of  tyrants,  admits,  when  treaties  between  sovereigns 
are  to  be  interpreted.  Nor  have  I  been  able  to  observe,  that 
this  distinction  of  Grothis  is  supported  by  the  usage  of  na- 
ti£f^&;  it  rather  confirms  what  he  afterwards  says,  that  it  is  not 
if  JSL  to  carry  to  besieged  places,  things  of  promiscuous  use, 
because  it  would  be  assisting  one  party  to  the  destruction  of 
the  other,  as  will  be  more  fully  explained  in  the  next  chap- 
ter. As  to  what  he  adds,  in  conclusion,  that  a  distinction  is 
^  be  made  between  the  justice  and  injustice  of  the  war,  I 
think  I  have  sufficiently  proved  in  the  preceding  chapter,  that 
it  may  be  proper  for  allies*  in  a  certain  case,  but  never  for 
neutrals. 

*  pur  author  in  the  chapter  to  which  he  refers  seems  to  consider  qualified 
ne\tti\als  as  allies,  and  indeed,  as  we  have  said,  the  line  is  often  difficult  to  be 
dra^'n  between  a  qualified  neutrality  and  an  alliance:  but  why  should  states 
bi  toe  judges  of  the  justice  of  the  war  in  one  case  more  than  in  the  other, 
what  has  that  to  do  with  their  engagements?  Will  they  not  in  every 
se,  as  our  author  himself  has  before  observed,  decide  for  their  own  ad- 
itage?  See  notes  p.  71,  72.  T. 


76  TREATISE  ON  THE  LAW  OF  WAR. 

The  law  of  nations  on  this  subject  is  not  to  be  drawn  from 
any  other  source  than  reason  and  usage.  Reason  commands 
me  to  be  equally  friendly  to  two  of  my  friends,  who  are  ene- 
mies to  each  other,  and  hence  it  follows  that  I  am  not  to  pre- 
fer either  in  war.  Usage  is  pointed  out  by  the  constant  and  as 
it  were  perpetual  custom  which  sovereigns  have  been  in  of 
making  treaties  and  laws  upon  this  subject,  for  they  have 
often  made  such  regulations  by  treaties  to  be  carried  into 
effect  in  case  of  war,  and  by  laws  enacted  after  the  war  begun. 
I  have  said  by,  as  it  were,  a  perpetual  custom;  because  one  or 
perhaps  two  treaties,  which  vary  from  the  general  usage,  do 
not  alter  the  law  of  nations.  It  is  agreed  amongst  almost  all 
nations,  that  it  is  not  lawful  for  a  friend  to  carry  arms  to  an 
y  >  enemy,  or  other  things  which  come  under  the  denomination 
•  of  contraband  goods;  nevertheless,  by  the  10th  section  of  the 
treaty  of  peace  of  Westminster,  made  in  the  year  1554,  be- 
tween the  English  and  Portuguese,  it  was  stipulated  that  it 
should  be  lawful  for  the  English  to  carry  those  things  to  the 
enemies  of  the  Portuguese,  as  is  observed  by  Zentgru 
De  Orig.  Verit.  &  Oblig.  Jur.  Gent.  art.  7.  §  8.  p.  m.  296, 
297.  And  the  Dutch  obtained  the  same  privilege  of  the  Por-, 
tuguese  by  the  12th  article  of  the  treaty  of  peace  between 
them  of  the  6th  of  August  1661.  Otherwise  the  rule  which  is 
proved  by  an  almost  perpetual  succession  of  treaties,  is,  that 
neutrals  cannot  carry  contraband  goods  to  enemies,  and  that  if 
they  do  it  and  are  taken  in  the  act,  the  goods  are  forfeited;  but 
with  the  exception  of  these,  they  may  freely  trade  with  either 
party,  and  carry  any  thing  to  them  with  impunity. 

According  to  these  principles  it  was  free  to  the  Dutch,  by 
the  3d  article  of  the  marine  treaty  between  Spain  and  the  states- 
general  of  the  17th  of  December  1650,  section  4,  to  trade  with 
the  French  in  any  kind  of  merchandize,  in  the  same  manner 
that  they  could  have  done  before  the  war  between  France  and 
Spain;  so  however,  that  they  should  not  carry  from  the  Spanish 
dominions  to  the'  French,  things  that  might  be  emplovcd 
against  Spain;  but  by  soction  5,  the  Dutch  are  prohibited  from 
carrying  contraband  goods  to  the  other  enemies  of  Spain,  and 


TREATISE  ON  THE  LAW  OF  WAR.  77 

by  die  6th  section  those  goods  that  are  contraband  are  enu- 
merated. 

Again,  by  the  2d  article  of  the  abovementioned  edict  of  the 
states-general  against  the  English^  of  the  5th  of  December  1652, 
neutrals  are  prohibited  from  carrying  to  the  English  any  am- 
munition of  war,  or  any  materials,  serving  to  the  equipment  of 
vessels.  Provision  is  also  made  against  carrying  contraband 
goods,  by  the  2d  section  of  the  edicts  of  1665,  1672,  and 
1673,  which  I  have  already  spoken  of;  there,  after  enume- 
rating various  species  of  contraband  articles  it  is  added,  "  and 
all  other  articles  manufactured  and  prepared  for  warlike 
use."  Nearly  the  same  thing  is  found  in  the  27th  and  28th  ar- 
ticles of  the  commercial  treaty  between  France  and  the  states- 
general  of  the  27th  of  April,  1662;  in  the  3d  article  of 
the  marine  treaty  between  Charles  II.  king  of,  England  and 
the  states-general  of  the  1st  of  December  1674;  the  3d 
article  of  the  treaty  of  commerce  between  the  king  of  S-weden 
and  the  states-general  of  the  26th  of  November  1675;  the 
15th  article  of  the  marine  treaty  between  the  same  powers 
of  the  12th  of  October  1679;  the  15th  article  of  the  treaty 
of  commerce  between  France  and  the  states-general  of  August 
1671;  the  llth  section  of  the  edict  of  the  states-general 
de  contrabandis^  of  the  28th  of  July  1705,  and  in  several 
other  treaties  between  different  nations,  some  of  which  are 
enumerated  by  Zentgravms,  1.  7.  §  8. 

From  these  I  understand  generally,  that  contraband  articles 
are  such  as  are  proper  for  war,  and  that  it  is  of  no  consequence 
whether  or  not  they  are  of  any  use  out  of  war.  Very  few  are 
the  implements  of  war,  which  are  not  also  of  some  use  out  of 
war.  We  wear  swords  for  the  decoration  of  our  persons,  we 
make  use  of  the  sword  for  the  punishment  of  criminals;  nay, 
we  even  make  use  of  gunpowder  for  our  amusement  and  to 
express  public  joy.  And  yet  there  is  not  any  doubt  but  thar 
these  come  under  the  denomination  of  contraband  articles. 

Of  those  things  which  are  of  promiscuous  use,  it  would  be 
endless  to  dispute,  and  it  would  be  so  if  we  were  to  follow 
Grottus's  opinion  about  necessity  and  the  various  distinctions 
which  he  brings  forward.  If  we  examine  the  treaties 


78  TREATISE  ON  THE  LAW  OF  WAR. 

between  the  different  nations,  which  we  have  already  men- 
tioned, and  also  those  which  exist  elsewhere,  it  will  be 
found,  that  every  thing  is  called  contraband,  which  is  of 
use  to  belligerent  nations  in  making  war;  whether  they  be 
warlike  instruments  or  materials  by  themselves  fit  to  be  used 
in  war.  For  what  the  states-general  on  the  6th  of  May  1667, 
decreed  against  the  Swedes,  that  even  materials,  not  of  them- 
selves fit  for  war,  but  which  might  easily  be  adapted  to  war- 
like use,  were  to  be  considered  as  contraband,  was  founded  on 
a  special  reason,  to  wit,  the  right  of  retaliation,  as  the  states 
themselves  express  it  in  the  said  decree. 

And  hence  you  will  judge  whether  the  materials  themselves 
out  of  which  contraband  goods  are  formed  are  themselves 
contraband?  Zouch^  de  Jure  Fee.  part,  2.  §  8.  Q.  8.,  appears, 
if  any  thing,  ^rather  inclined  to  this  opinion.  For  my  part  I 
am  not,  because  reason  and  precedents  incline  me  to  the  con- 
trary. If  all  materials  are  prohibited  out  of  which  something 
may  be  made  which  is  fit  for  war,  the  catalogue  of  contraband 
goods  will  be  immense,  for  there  is  hardly  any  kind  of  mate- 
rial, out  of  which  something  at  least,  fit  for  war,  may  not  be 
fabricated.  The  interdiction  of  these  amounts  to  a  total  prohi- 
bition of  commerce,  and  might  as  well  be  so  expressed  and 
understood.  And  the  4th  article  of  the  said  treaty  of  the  1  st 
of  December  1674;  the  4th  of  the  said  treaty  of  the  26th 
of  November  1675,  and  the  16th  article  of  the  said  treaty  of 
the  12th  of  October  1679,  which  prohibit  neutrals  from  carry- 
ing arms  to  enemies,  permit  the  carrying  of  iron,  brass,  me- 
tals, materials  for  building  ships,  and  in  short  every  thing 
which  is  not  already  prepared  for  warlike  use. 

Sometimes,  however,  it  happens,  that  materials  for  building 
ships  are  prohibited,  if  the  enemy  is  in  great  need  of  them,  and 
cannot  well  carry  on  the  war  without  them.  When  the  states- 
general  by  the  2d  section  of  their  edict  against  the  Portuguese, 
of  the  31st  of  December  1657,  prohibited  the  supplying  the 
Portuguese  with  those  things  which  by  the  general  usage  of 
nations  are  considered  as  contraband  of  war,  they  specially 
added  by  the  3d  section  of  the  same  edict,  that  as  they  feared 
nothing  from  the  Portuguese  except  by  sea,  no  one  should 


TREATISE  ON  THE  LAW  OF  WAR.  79 

carry  to  them  even  materials  for  building  ships;  thus  openly 
distinguishing  those  materials  from  contraband  articles,  and 
prohibiting  them  only  for  a  special  reason  expressly  set  forth. 
For  the  same  reason,  materials  for  ship  building,  are  joined 
with  instruments  of  war,  in  the  2d  section  of  the  edict  gainst 
the  English  of  the  5th  of  December  1652,  and  in  the  edict  of 
the  states-general  against  the  French  of  the  9th  of  Marct  1689. 
But  these  are  exceptions  which  confirm  the  general  rufe. 

It  is  asked  whether  scabbards  are  to  be  considered  as  con- 
traband? Petr'mus  Bellus,  de  Re  Militari,  part  9.  n.  26,  27, 
28.,  says  that  it  has  been  so  decided  by  the  military  judges, 
though  he  himself  does  not  approve  of  that  decision. 
Zouch,  De  Jure  Fee.  part  2.  §  8.  Q.  2.,  satisfied  witi  giving 
out  of  Bellus,  the  arguments  on  both  sides,  decides  nothing^ 
according  to  his  custom.  For  my  part,  I  approve  o:'  the  de- 
cision of  the  military  judges,  and  I  am  opposed  to  the  opinion 
of  Bellus,  because  scabbards,  although  of  promiscuous  use,  are 
however,  instruments  prepared  for  war.  Without  scabbards, 
swords  cannot  be  used,  and  without  swords  there  cm  be  no 
war.  Nay,  holsters,  saddles  and  belts  are  numberel  among 
articles  of  contraband  in  the  said  2d,  3d  and  5th  articles  of  the 
said  edicts  and  treaties  which  I  have  above  mentiored.  Hol- 
sters, as  to  their  use,  do  not  differ  in  any  thing  from  scabbards: 
the  latter  are  cases  for  swords  and  the  others  for  pistols.  Cer- 
tainly these  might  be  excused,  if  they  were  in  v;ry  small 
quantity;  and  the  said  third  article  of  the  treaty  of  tie  26th  of 
November  1675,*  has  also  this  exception:  "  unless  these  instru- 
ments should  be  in  so  small  a  quantity,  that  it  might  be  inferred 
from  thence  that  they  were  not  designed  for  the  use  of  war." 

What  shall  we  say  of  srvord  hilts?  The  same,  I  tiink,  as  of 
scabbards,  for  they  are  instruments  fit  and  preparel  for  war, 
and  are  also  included  in  the  list  of  contraband  goods,  in  some 
of  the  edicts  and  treaties  \vhich  I  have  before  citec.  Of  salt- 
petre, more  doubt  might  be  entertained,  because  it  is  not  of 
itself  an  article  fit  to  be  used  in  war;  and  yet  saltpetre  is  con- 
tained in  all  the  lists  of  contraband  articles  which  I  lave  men- 
tioned, for  out  of  saltpetre  gunpowder  is  made,  which  is  now 

*  Between  the  states-general  and  Swede/:,  see  p.  77.  T, 


80  TREATISE  ON  THE  LAW  OF  WAR. 

the  principal  article  used  in  war.  Nay,  I  have  observed  that 
saltpetre  is  sometimes  mentioned  with  the  addition  of  gun- 
powder and  sometimes  without.  Where  gunpowder  is  omitted, 
saltpetre  is  mentioned  in  lieu  of  it;  when  both  are  mentioned, 
they  ate  considered  as  synonymous  words,  unless  saltpetre,  on 
account  of  its  important  use  in  war,  should  have  been  excepted 
by  nations  out  of  those  articles  which  of  themselves  are  not 
fit  for  var. 

Of  tobacco,  Zouch  informs  us,  De  Jure  Fee.  part  2.  §  8.  Q. 
12.  that  there  was  a  great  contention  between  the  English  and 
the  Spaniards,  and  that  the  latter  considered  it  as  contra- 
band,* to  the  great  indignation  of  the  English,  who  went  so 
far  as  to  issue  reprisals  against  them.  What  became  after- 
wards  of  that  controversy  I  know  not;  this  I  know,  that  I 
cannot  concur  in  opinion  with  the  Spaniards,  because  the  fact 
is,  that  tobacco  cannot  be  of  any  use  in  destroying  the  enemy. 
Nay,  bythe  said  3d,  4th,  15th  and  16th  articles!  it  is  lawful  to 
carry  tobacco  to  an  enemy,  for  by  the  same  articles,  it  is  lawful 
to  carry  to  the  enemies  of  our  friends  all  things  which  in  the 
conditiot  they  are  in  are  not  fit  for  war,  and  tobacco  is  nomi- 
nally incbded  among  lawful  goods,  by  the  4th  article  of  the 
said  treafrof  the  1st  of  December  1674. 

It  is  clear  by  the  1.  22.  §  1.  ff.  de  Jure  Fisc.  that  if  a  pledge 
is  forfeittd,  the  jus  pignoris  is  not  thereby  extinguished. 
Hence  if  neutrals  had  shipped  contraband  goods  to  our  ene- 
mies and  jound  them  for  the  freight,  if  the  goods  are  taken  in 
the  courst  of  the  voyage,  and  condemned  as  contraband,  the 
Dutch  lavyers  have  given  it  as  their  opinion  that  the  captain 
is  entitled  to  his  freight,  as  though  the  whole  voyage  had  been 
performed.  And  it  is  related  that  it  was  thus  decided  by  the 
court  of  admiralty  of  North  Holland,  on  the  6th  of  May  1665, 
and  of  Fr.esland,  on  the  12th  of  July  in  the  same  year,  on  the 
principles  that  res  transit  cum  suo  onere,  that  the  fisk  yields  to 
creditors,  fjisciis  cedit  creditoribusfy  and  others  of  the  like 

*  The  reason  alleged  was  that  tobacco  might  be  used,  as  well  as  salt,  to 
preserve  provisions  from  corruption.  Zouch,  ubi  supre).  T. 

f  Sec  p.  77,  78. 

'-  In  tliis  country,  and  in  England,  the  opposite  maxim  prevails.  The  sove- 
rr'.£n  is  »  ntftl'nl  t.o  a  priority  of  payment,  et  crcditores  ctdunt  fisco .  T. 


TREATISE  ON  THE  LAW  OF  WAR.  8i 

kind.  But  the  court  of  admiralty  of  Amsterdam  decided  dif- 
ferently on  the  9th  of  July  1666;  they  refused  to  allow 
freight  to  the  captured,  without  prejudice,  however,  to  his 
rights  against  whomsoever  else  it  might  concern.  And  this 
is  very  correct;  for  the  freight  is  not  due  unless  the  voyage 
is  performed,  and  the  enemy  has  lawfully  prohibited  its 
being  performed.  Then  contraband  goods  are  condemned, 
either  ex  delicto,  when  the  captain  and  mariners  are  no 
less  in  fault  than  the  owners  of  the  goods,  or  ex  re,  for  the 
very  carriage  of  the  goods  themselves;  for  although  we 
cannot  prohibit  neutrals  from  trading  with  our  enemies,  yet 
we  may  prohibit  thejr  assisting  them  in  the  war  to  our 
destruction.  Therefore  what  is  condemned,  is  condemned 
without  regard  to  any  man,  and  is  to  be  considered  as  if. 
it  had  perished  by  the  act  of  God,  whereby  the  jus  pignor 
is  extinguished.*  I  am  not,  however,  astonished  at  those 
lawyers  having  been  of  opinion,  that  the  master  of  the  vessel 
has  a  lien  for  the  freight  on  contraband  goods  that  are  con- 
demned, I  rather  wonder  that  they  have  not  allowed  it  in 
preference  to  the  owners  of  the  merchandize;  for  they  have 
jus  in  re,  a  right  of  property,  which  is  the  strongest  of  all.f 

It  is  denied  that  the  subject  of  an  ally  or  confederate, 
trading  with  a  common  enemy,  may  be  punished  by  us,  or 
his  property  condemned;  because  it  is  said  that  every  one  is 
bound  only  to  obey  the  laws  of  his  own  sovereign,  and  there- 
fore that  an  ally  can  have  no  control  over  him.  But  reason, 
usage  and  public  utility,  are  opposed  to  that  decision.  The 
reader  may,  if  he  pleases,  turn  to  what  Aitzema  has  written:}: 
upon  that  subject;  for  my  part,  I  shall  abstain  from  it.  As  I 
am  now  only  treating  of  what  contraband  is,  such  a  discus- 
sion cannot  with  propriety  be  introduced  in  this  place. 

*  This  doctrine  is  now  adopted  as  to  contraband  goods,  v/hich  are  con- 
demned ex  dellcto;  but  not  as  to  enemy's  goods,  which  are  condemned  only 
ex  re.  In  the  latter  case,  when  the  conduct  of  the  captured  is  fair,  freight 
is  generally  allowed.  See  post,  c.  14  in  note.  T. 

\  There  seems  to  be  no  real  difference  here,  for  the  master  can  only 
claim  as  agent  for  the  owners,  to  whom  the  freight  belongs.  T. 

±  Aitz.  1.  46. 


82  TREATISE  ON  THE  LAW  OF  WAR. 

CHAPTER  XL 

Of  Trade  with  blockaded  and  besieged  Places. 

I  HAVE  said  in  a  former  chapter,*  that  by  the  usage  of 
nations,  and  according  to  the  principles  of  natural  reason, 
it  is  not  lawful  to  carry  any  thing  to  places  that  are  blockaded 
or  besieged.  Grotius  is  of  the  same  opinion;  for  he  reprobates 
the  carrying  any  thing  to  blockaded  or  besieged  places,  "  if 
it  should  impede  the  execution  of  the  belligerent's  lawful 
designs;  and  if  the  carriers  might  have  known  of  the  siege  or 
blockade;  as  in  the  case  of  a  town  actually  invested  or  a  port 
closely  blockaded,  and  when  a  surrender  or  a  peace  is  already 
expected  to  take  place."f  Indeed,  it  is  sufficient  that  there  be 
a  siege  or  blockade  to  make  it  unlawful  to  carry  any  thing, 
(whether  contraband  or  not,  to  a  place  thus  circumstanced; 
for  those  who  are  within  may  be  compelled  to  surrender,  not 
merely  by  the  direct  application  offeree,  but  also  by  the  want 
of  provisions  and  other  necessaries.  If,  therefore,  it  should 
be  lawful  to  carry  to  them  what  they  are  in  need  of,  the  bel- 
ligerent might  thereby  be  compelled  to  raise  the  siege  or 

*  Above,  c.  4.  p.  31. 

f  Si  juris  mei  executionem  rerum  subvectio  impedierit,  id/jue  scire  potuerit 
qui  advexit,  UT  si  oppiJum  obsessum  tenebam,  si  portus  clauses,  &  jam  deditio 
nut  pax  expectabatur,  tenebitur  ille  tnihi  de  damno  culpd  data,  ut  qui  debitorem 
carceri  exemit,  aut  fugam  ejus  in  meam  fraudem  instruxit;  si  damnum 
nondum  dederit,  sed  dare  voluerit,  jus  erit  rerum  rttentione  eitm  cogere  ut 
de  future  caveat,  obsidibits,  pignoribus,  aut  alio  modo.  If  he  (the  carrier) 
should  by  his  supplies  impede  the  execution  of  any  lawful  designs;  as 
if  I  kept  a  town  besieged  or  a  port  closely  blockaded,  and  I  already 
expected  a  surrender  or  a  peace;  he  will  be  liable  to  me  for  the  damage 
occasioned  by  his  fault,  in  like  manner  as  he  who  should  make  my  debtor 
escape  out  of  prison,  or  aid  him  in  his  flight  to  defraud  me  of  my  right; 
and  if  he  has  not  occasioned  to  me  any  actual  damage,  but  has  been 
willing  to  do  it,  in  that  case,  it  will  be  lawful  by  the  detention  of  his  goods, 
to  compel  him  to  give  security  for  the  future,  by  hostages,  pledges  or  in 
some  other  way.  Grot,  de  J.  B.  ac  P.  1.  3.  c.  1.  §  5.  n.  3.  T. 


TREATISE  ON  THE  LAW  OF  WAR.  83 

blockade,  which  would  be  doing  him  an  injury,  and  therefore 
would  be  unjust.  And  because  it  cannot  be  known  what  ar- 
ticles the  besieged  may  want,  the  law  forbids  in  general  terms 
carrying  any  thing  to  them;  otherwise  disputes  and  altercations 
would  arise  to  which  there  would  be  no  end. 

Thus  far  my  opinion  coincides  with  that  of  Grotius,  but  I 
cannot  agree  with  him  when  he  requires  an  expectation  of  a 
surrender  or  a  peace,*  and  when  he  says  immediately  after- 
wards that  even  under  those  circumstances,  the  carrier  is  only 
bound  to  an  indemnity  for  the  damage  occasioned  by  his  faulty 
and  if  no  damage  has  been  suffered,  that  he  may  only  be  com- 
pelled by  the  detention  of  his  goods  to  give  security  that  he  will 
not  do  the  like  in  future.  I  wish  that  Grotius  had  not  laid  down 
such  principles,  which  are  neither  consonant  to  reason,  nor  to 
the  sense  of  treaties.  For  on  what  principle  am  I  to  be  the 
judge  of  the  future  surrender  or  peace?  and  if  neither  is  ex- 
pected, is  it  then  lawful  to  carry  any  thing  to  the  besieged? 
I  think  on  the  contrary,  that  during  a  siege,  it  is  always 
unlawful.  It  is  not  acting  a  friendly  part  to  ruin,  or  in  any 
way  impair,  the  cause  of  a  friend,  and  if  so,  why  shall  he  who 
carried  supplies  to  my  enemy  not  be  bound  farther  than  for 
the  damage  occasioned  by  his  fault?  Such  conduct  has  always 
been  considered  as  a  capital  crime  in  subjects,  nay,  in  neutrals, 
when  previously  warned  by  a  proclamation,  and  often  without 
such  warning.  As  they  are  generally  private  individuals,  who, 
impelled  by  the  thirst  of  gain,  are  in  the  habit  of  administering, 
supplies  to  the  besieged;  suppose,  for  instance,  that  such  a  one 
has  been  the  cause  that  a  city  has  not  been  taken,  I  should 
hardly  think  in  such  a  case  that  any  individual  could  be  rich 
enough  to  repair  the  damage  thereby  suffered.  And  if  he 
should  be  intercepted  on  his  way  to  the  besieged  town  with 

*  Our  author  appears  here  to  have  mistaken  the  meaning  of  Grotius.  That 
writer  does  not,  in  our  opinion,  require  as  a  necessary  ingredient  in  a  strict 
blockade,  that  there  should  be  an  expectation  of  peace  OP  of  a  surrender,  but 
merely  mentions  that  as  an  example,  and  by  way  of  putting  the  strongest 
possible  case.  We  have  transcribed  the  passage  in  the  original  lan- 
guage, with  a  literal  translation  in  the  preceding  note,  in  order  that  our 
readers  may  be  enabled  to  judge  for  themselves  of  the  correctness  of  this 
remark.  T. 


84  TREATISE  ON  THE  LAW  OF  WAR. 

the  supplies  that  he  is  carrying  thither,  shall  we  be  content 
with  taking  and  retaining  the  articles,  and  that  merely  until 
he  gives  security  that  he  shall  not  commit  the  like  in  future? 

1  cannot  subscribe  to  this  opinion;  being  taught  by  the  usage 
of  nations,  that  the  least  punishment  in  such  a  case  is  the  for- 
feiture of  the  things  taken;  and  that  a  corporal  penalty  at 
least,  if  not  a  capital  one,  is  often  inflicted  on  the  offender.* 

Let  us  now  turn  to  some  treaties  on  this  subject.  By  the  9th 
article  of  the  marine  treaty  between  the  king  of  Spain  and  the 
states-general,  of  the  17th  of  December  1650,  it  is  simply  agreed, 
"  that  it  shall  not  be  lawful  to  carry  goods,  even  not  contraband, 
to  places  blockaded  and  besieged."  The  same  clause  is  con- 
tained in  a  variety  of  other  treaties!  \  all  of  which,  however, 
merely  stipulate  that  it  is  unlawful  to  carry  any  thing  to 
besieged  or  blockaded  places,  without  affixing  any  penalty 
to  the  offence.  But,  if  the  carrying  of  any  thing  to  a  besieged 
town  or  place  is  illicit,  it  follows  that  every  thing  which  is 
carried  thither  is  to  be  considered  as  contraband;  for  every 

*  This  is  a  very  severe  doctrine,  and  which  certainly  is  not  conformable 
to  the  usage  of  nations  at  the  present  day;  but  it  must  be  observed  that  our 
author,  as  well  as  Grotius,  only  meant  to  speak  of  a  strict  and  actual  siege  or 
blockade,  where  a  town  is  actually  invested  with  troops,  or  a  port  closely 
blockaded  by  ships  of  war,  portus  clausus,  as  Grotius  emphatically  expresses 
it;  for  at  the  time  when  those  great  men  wrote,  no  idea  was  enter- 
tained of  that  enormous  system  of  universal  blockade,  by  means  of  edicts 
and  proclamations,  the  effects  of  which  have  desolated  the  world  for  the 
last  twenty  years.  T. 

\  Treaty  of  commerce  between  the  states-general  and  the  king  of  France, 
of  the  2rth  of  April  1662,  art.  29. — Marine  treaty  between  the  king  of 
England  and  the  states-general,  of  the  1st  of  December  1674,  art.  4. — Treaty 
of  commerce  between  the  king  of  France  and  the  states-general,  of  the  10th 
of  August  1678,  art.  16. — Treaty  of  commerce  between  the  king  of  Sweden 
and  the  states-general,  of  the  12th  of  October  1679,  art.  16,  and  a  great 
number  of  other  treaties. 

t  In  our  treaties  with  other  nations,  no  other  punishment  is  contemplated 
for  a  breach  of  blockade,  than  a  confiscation  of  ihe  ships  and  goods.  In  our 
treaty  with  Great  Britain  of  the  19th  of  November  1794,  art.  18,  it  is  even 
stipulated  that  that  punishment  shall  not  be  inflicted,  except  in  the  case  of 
a  vessel  which  shall,  after  being  warned,  attempt  to  enter  a  blockaded  port. 

2  Laivs  U.  S.  484.  A  similar  stipulation  is  contained  in  the  12th  article  of 
our  convention  with  France,  of  the  30th  of  September  1800.  6  Laws  U.  S. 
Appendix  xx.  '/'. 


TREATISE  ON  THE  LAW  OF  WAR.  85 

thing  which  is  carried  from  one  place  to  another  contrary  to 
law  and  treaties*  is  contraband,  and  as  such,  is  at  least  liable 
to  forfeiture.  Thus  usage  has  established  it,  as  will  be  more 
fully  shewn  in  the  sequel;  it  has  also  established  that  the 
offenders  may  be  punished  capitally,  or  with  a  milder  punish- 
ment, according  to  the  circumstances  of  the  case.f 

Not  only  towns  or  cities,  but  camps  likewise  may  be  sur- 
rounded with  troops  and  as  it  were  besieged.  In  such  a  case  it 
is  not  more  lawful  to  carry  any  thing  to  them,  than  to  invested 
cities.  But  if  they  are  not  besieged,  I  see  no  reason  why  neutrals 
may  not  lawfully  carry  thither  any  thing  which  may  be  lawfully 
carried  to  towns,  ports  and  places  so  circumstanced,  that  is  to 
say,  every  thing  which  is  not  actually  contraband.  And  yet, 
the  counsellors  of  the  states-general,  in  the  name  of  the  states, 
issued  an  edict  on  the  9thof  August  1622,  by  which  they  decreed, 
that  all  who  should  carry  any  thing  to  the  Spanish  camp  before 
Bergen-op-Zoom,  should  be  considered  as  enemies.  The  same 
counsellors,  on  the  2d  of  September  1624,  and  on  the  21st  of 
March  1636,  decreed  the  same  thing  against  those  who  should 
carry  any  thing  to  the  Spanish  camp. 

Those  edicts  are  undoubtedly  too  unjust  to  be  defended,  if 
the  camp  to  which  they  apply  is  not  besieged,  and  the  things 

*  Goods  prohibited  by  treaty  between  the  sovereigns  of  the  captors  and 
the  captured,  though  otherwise  they  might  not  be  considered  as  contraband, 
are  condemned  ex  delicto,  and  no  freight  is  allowed  upon  them.  The  Neu- 
traliteet,  3  Rob.  240.  Am.  edit.  T. 

f  At  this  day,  however,  the  only  penalty  which  is  inflicted  for  trading 
with  a  blockaded  port  is  the  forfeiture  of  the  property  detected  in  the 
pursuit  of  such  trade.  It  is  true,  that  on  the  strict  principles  of  the  law  of 
nations,  those  who  knowingly  trade  with  blockaded  ports,  may  justly  be 
considered  and  treated  as  enemies,  and  so  Vattel  lays  it  down  in  his  Treatise 
en  the  Law  of  Nations,  1.  3.  c.  7.  §  117.  But,  in  the  manner  that  war  is  now 
carried  on,  such  treatment  cannot  extend  farther  than  the  confiscation  of  the 
property,  and  perhaps,  the  imprisonment  of  the  neutral  captains  and  crews, 
which  has  sometimes,  though  rarely,  taken  place,  and  can  only  be  justified 
(if  at  all)  in  very  flagrant  cases.  Vattel  does  not  mention  any  specific  punish- 
ment  to  be  inflicted  in  cases  of  this  kind,  though  he  relates  the  stoiy  of 
Demetrius,  who  hanged  the  captain  and  pilot  of  a  ship  carrying  provisions 
to  Athens,  which  he  was  besieging.  But  precedents  are  not  now  to  be  drawn 
from  such  barbarous  times.  T 


86  TREATISE  ON  THE  LAW  OF  WAR. 

are  not  carried  through  the  neutral's  territory.  The  two  first, 
however,  extended  to  the  subjects  of  the  United  Nether- 
lands, to  neutrals,  and  to  the  subjects  of  those  states  who 
were  under  the  protection  of  the  Dutch.  But,  although  every 
sovereign  has  a  right  to  enact  with  respect  to  his  own  subjects, 
what  laws  he  may  think  proper,  and  no  one  can  find  fault  with 
him  for  so  doing;  yet  as  far  as  they  apply  to  neutrals,  and  the 
subjects  of  countries  under  the  protection  of  the  states,  those 
edicts  cannot  be  supported  unless  they  are  restricted  to  con- 
traband only.  The  third  edict  of  the  21st  March  1636,  relates 
to  neutrals  who  should  carry  provisions  or  implements  of  war 
to  the  Spanish  fortresses;  but  that  was  done,  as  is  expressly 
mentioned,  by  way  of  retaliation,  because  the  Spaniards  had 
treated  as  enemies  those  who  had  assisted  the  town  of  Maes- 
tricht  with  provisions  and  arms.  Retaliation,*  therefore,  re- 
moves the  hardship  of  the  edict  as  to  provisions,  which 
otherwise  neutrals  may  lawfully  carry,  if  there  be  no  treaty  to 
the  contrary;  but  it  is  otherwise  with  arms  and  military  stores, 
even  though  they  be  carried  to  a  place  not  besieged,  and  so 
far  this  edict  is  perfectly  just.  As  to  other  things,  whether 
they  were  or  not  lawfully  prohibited  by  the  edicts  of  the 
Spaniards  or  of  the  states-general,  depends  entirely  upon  the 
circumstance  of  the  places  being  besieged  or  not. 

*  It  is  but  seldom  that  we  are  disposed  to  controvert  the  principles  laid 
down  by  this  excellent  author,  but  \ve  must  here  again  refer  the  reader  to 
what  he  says  himself  in  chapter  4:  Retorsio  non  est  nisi  adversus  eum,  qui 
ipst  damni  quid  dedit,  ac  deinde*  patitur,  non  vero  adversus  crnntnuntin  amicum- 
"  Retaliation  is  only  to  be  exercised  on  him  who  has  inflicted  the  injury, 
and  therefore  justly  suffers  for  it,  but  not  on  a  common  friend."  See  above,  p. 
33.  How  then  can  he  maintain  in  the  present  instance,  as  well  as  in  another 
(p.  61.)  that  an  injury  done  to  a  neutral  can  be  justified  on  the  principle  of 
retaliation  upon  the  enemy!  We  would  have  supposed  that  national  preju- 
dice (as  in  both  the  above  cases  the  Dutch  were  the  authors  of  the  injury  to 
neutrals)  had  made  him  overlook  the  very  principle  on  which  he  had  set  out 
in  the  beginning  of  his  work,  were  it  not  that  he  applies  it  there  against  a 
similar  act  of  his  own  government,  and  freely  reproves  their  conduct  in 
several  other  instances.  Whatever  may  have  been  his  motive,  we  are  com- 
pelled to  say  that  he  is  here  in  direct  contradiction  with  himself,  and  that 
on  his  own  clear  and  luminous  principle,  his  justification  of  the  conduct 
of  the  Dutch  in  these  two  instances  cannot  be  supported.  T. 


TREATISE  ON  THE  LAW  OF  WAR.  87 

The  same  law  which  obtains  with  respect  to  towns  that 
are  really  besieged,  and  by  a  parity  of  reasoning  has  been  ap- 
plied to  camps,  as  being,  as  it  were,  besieged,  applies  also  to 
enemy's  ports,  which  are  blockaded  by  ships  of  war,  and  there- 
fore are  considered  as  in  a  state  of  siege.  There  is  on  this 
subject  a  remarkable  decree  of  the  states-general,  of  the  26th 
of  June  1630,  made  with  the  advice  and  opinion  of  the  court 
of  admiralty  of  Amsterdam,  and  of  other  courts  of  admiralty, 
nay,  it  is  probable,  with  the  advice  also  of  some  private 
lawyers.*  At  that  time,  the  states  were  blockading  with 
ships  of  war  the  maritime  coast  of  Flanders;  it  was  then 
made  a  question  whether  neutrals  might  carry  on  trade  with 
the  ports  of  that  country,  and  upon  that  the  states  made  the 
decree  in  question,  which  we  shall  here  lay  before  our  readers 
and  accompany  it  with  a  few  remarks. 

The  first  article  provided  "  that  the  ships  and  goods  of 
neutrals  which  should  be  found  going  in  or  coming  out  of  the 
enemy's  ports  in  Flanders,  or  being  so  near  thereto,  as  to  shew 
beyond  a  doubt  that  they  were  endeavouring  to  run  into  them, 
should  be  confiscated,  because  their  high  mightinesses  kept  the 
said  ports  continually  blockaded  with  their  ships  of  war,  in 
order  to  prevent  any  commerce  between  them  and  the  enemyjf 
as  had  been  the  custom  many  years  before,  after  the  example 
of  all  other  princes,  who  had  claimed  and  enforced  a  similar 
right  in  like  cases" 

By  the  second  article  it  was  ordered  that  the  ships  and 
goods  should  be  confiscated,  "  if  from  the  charter-parties,  or 
other  documents  on  board,  it  should  appear  that  the  vessels 
were  bound  to  the  said  Flemish  ports,  although  they  should 
be  found  at  a  distance  from  them,  unless  they,  of  their  own 
accord,  before  coming  in  sight  of  or  being  chased  by  our 
country's  ships,  should  repent  their  intention,  while  the  thing 
was  yet  undone,  and  alter  their  course;  in  which  case  the  mat- 
ter should  be  decided  according  to  conjectures  and  circum- 
stances." 

*  Consil.  Holland,  vol.  5.  Consil.  161. 

f  The  Spaniards,  whose  king  was  at  that  time  sovereign  of  the  county  of 
Flanders,  and  of  the  rest  of  the  Catholic  Netherlands.  T. 


88  TREATISE  ON  THE  LAW  OF  WAR. 

The  third  article  directs  the  confiscation  of  such  ships  with 
their  cargoes,  "as  should  come  out  of  the  said  ports,  not 
having  been  forced  into  them  by  stress  of  weather,  although 
they  should  be  taken  at  a  distance  from  thence,  unless  they 
had  after  leaving  the  enemy's  port  performed  a  voyage  to  a 
port  of  their  own  country,  or  to  some  other  neutral  or  free 
port,  in  which  case  they  should  not  be  condemned;  but  if  in 
coming  out  of  the  said  Flemish  ports  they  should  be  pursued 
by  our  own  ships,  chased  into  another  port,  such  as  their  own 
or  that  of  their  destination,  and  found  on  the  high  sea  coming 
out  of  such  port,  in  that  case  they  might  lawfully  be  captured 
and  confiscated."  There  is  also  a  fourth  article,  which  I  have 
recited  and  commented  upon  before,*  and  which  I  think  it 
unnecessary  to  say  any  more  upon.  But  the  three  first  articles 
of  this  law  appear  to  me  to  require  some  explanation. 

As  to  the  first  article,  inasmuch  as  it  condemns  vessels 
found  actually  going  into  or  coming  out  of  the  enemy's  ports, 
there  is  no  reason  for  it,  but  that  which  is  expressed  in  the 
edict  itself.  It  goes  however  further,  and  confiscates  those 
which  shall  be  found  so  near  to  the  enemy's  ports  as  to  shew 
beyond  a  doubt  that  they  intend  running  into  them.  This  is 
reasonable  also;  because  if  prohibited  goods  are  found  on  the 
confines  of  the  hostile  territory,  they  are  presumed  to  be  car- 
rying to  the  enemy,  not  only  according  to  the  most  general 
opinion  of  the  civilians,!  but  also  according  to  the  intent  and 
meaning  of  the  states-general,  which  is  fully  expressed  in  this 
law  and  in  various  other  edicts, :{:  unless,  indeed,  as  is  provided 
in  all  the  said  edicts,  they  should  prove  that  they  were  driven 
in  by  stress  of  weather.  The  same  exception  is  made  in  the 
second  article  of  this  decree. 

But,  not  to  leave  the  coast  of  Flanders,  precisely  the  same 
thing  was  decreed  on  the  same  subject,  in  the  infancy  of  our 


*  Above,  c.  4.  p.  30. 

|  Zc/ttcA,  DC  Jure  Fee.  p.  2.  §  8.  Q.  10.  quotes  a  number  of  authorities  to 
tliis  point. 

i  Edicts  against  the  English,  of  the  5th  December  1652,  and  1 9th  of  March 
J665,  §  4.— Against  the  English  and  French  of  the  14th  of  April  1672,  and 
llth  of  April  1673,  §4- 


TREATISE  ON  THE  LAW  OF  WAR.  89 

republic;  for  by  the  edicts  of  the  earl  of  Leicester,*  by  which 
he  prohibits  as  well  to  foreigners  as  to  subjects  all  commerce 
with  the  Spaniards,  and  by  the  edict  of  the  states  of  Holland, 
of  the  27th  July  1584,  neutrals,  trading  with  the  Flemish  ports, 
are  punished  with  the  confiscation  of  their  ships  and  goods, 
and  that  edict  expressly  provides  that  those  "  who  shall  be 
found  on  the  coast  of  Flanders,  or  near  "  to  some  of  the  pro- 
hibited ports,  shall  be  adjudged  to  have  contravened  this 
ordinance,  except  incases  of  extreme  and  well  proved  necessity." 
The  opinion  of  Cynu-t,  who  writes  that  they  are,  even  in  such 
a  case,  to  be  punished  as  going  to  the  ports  of  the  enemies, 
when  they  have  so  far  advanced  on  their  way  that  they  cannot 
return,  is  therefore  not  admissible,  although  it  has  the  ap- 
probation of  Albericus  Gentilis.\ 

Thus  much  I  have  thought  proper  to  observe  on  the  first 
article  of  this  law;  the  reasonableness  of  which  applies  equally 
to  the  second  article;  for  those  things  which  are  taken  near  to 
besieged  places,  are  not  condemned  for  any  other  reason,  than 
that  an  intention  of  trading  with  the  enemy  is  tacitly  collected 
from  the  internal  evidence  of  the  fact  itself,  and  it  amounts  to 
the  same  thing,  as  if  that  intention  had  clearly  appeared  from 
the  documents  on  board,  and  therefore  there  is  no  room  for 
any  doubt.  But  what  is  added  about  repentance,  I  find  some 
difficulty  to  admit;  if,  however,  there  is  sufficient  proof  of 
the  alteration  of  the  voyage,  I  should  not  be  far  from  acceding 
to  that  opinion. 

The  third  article  properly  distinguishes  between  vessels 
which  are  chased  or  compelled  to  take  refuge  and  those  who 
proceed  voluntarily  to  the  port  of  their  destination.  The  latter 
are  excused,  when  found  coming  out  of  that  port,  their  voyage 
being  considered  as  ended,  and  a  new  one  begun,  while  the 
former  are  condemned,  as  being  taken  in  the  very  act  of 
violation  of  blockade.  But  on  the  subject  of  these,  the  edict 
speaks  in  the  disjunctive,  and  says,  "if  they  are  chased  into 
their  orvn  port  OR  the  port  of  their  destination"  so  that  there 
may  be  a  doubt  as  to  the  sense  of  these  words  and  the  law 

*  Edict  of  the  4th  of  April  1586— of  the  4th  of  August  same  year,  §  9. 
t  De  adyocat.  Hispan.  1.  1.  c.  20.  p.  m.  86. 

fM 


90  TREATISE  ON  THE  LAW  OF  WAR. 

which  results  from  them.  Certainly  there  can  be  no  doubt,  if 
the  same  thing  is  meant  by  their  own  port,  and  the  port  of 
their  destination;  But  if  an  Englishman  who  was  bound  to 
a  port  of  Denmark  is  driven  into  a  port  of  England,  and 
coming  out  of  it,  and  prosecuting  his  voyage,  should  be  taken 
before  he  reached  the  Danish  port,  it  appears  to  me  that  he 
would  be  taken  in  the  course  and  in  the  very  act  of  the  illicit 
voyage,  and  that  it  would  be  of  no  consequence,  whether  it  was 
his  own  port,  or  not,  which  he  had  entered  into,  if  the  voyage 
which  he  was  engaged  in  had  not  been  completely  finished. 
Therefore,  as  disjunctives  are  frequently  to  be  construed  as 
conjunctives,  I  understand  these  words  "  their  orvn  port"  in 
the  said  article,  to  mean  the  port  to  which  the  vessel  was 
bound,  and  where  her  voyage  was  to  be  ended.*  I  shall  put  a 
case,  in  order  more  fully  to  illustrate  my  meaning:  Suppose 
that  a  vessel  from  Zierikzee\  is  taken  by  the  Dunkirkers,  who 
condemn  and  sell  her,  and  she  is  purchased  by  a  Scotchman. 
By  the  4th  article  of  the  said  decree  which  I  have  above  recited 
at  large:}:  it  is  only  lawful  to  capture  and  condemn  her,  if  found 
coming  out  of  an  enemy's  port  before  she  had  entered  into  her 
own  or  into  some  other  free  port,  but  not  afterwards.  This 
vessel  now  belonging  to  the  Scotchman,  and  coming  out  of 
Dunkirk,  is  met  with,  but  not  taken.  She  runs  into  Tarmouth, 
where  she  was  not  bound  to,  and  coming  out  of  that  port,  is 
captured.  It  is  asked  whether  she  is  to  be  considered  as  having 
entered  into  her  own  port  within  the  meaning  of  the  edict? 
I  cannot  say  that  she  is,  because  she  has  not  entered  into  the 
port  to  which  she  was  bound.  The  states-general  in  a  similar 
case,  with  the  advice  of  the  admiralty  of  Zealand,  decreed  on 

*  We  cannot  perceive  how  any  difficulty  can  arise  as  to  the  construction 
of  this  part  of  the  edict;  since,  whether  the  vessel  was  chased  into  the 
actual  port  of  her  destination  or  into  any  other  port  of  her  own  country, 
she  is  equally  to  be  condemned  according  to  the  letter  of  the  law  as  it  is 
given  to  us.  So  that  the  interpretation  which  our  author  contends  for, 
appears  to  us  to  be  not  only  unnecessary  but  dangerous,  as  it  would  make 
'a  merely  consti  active  offence,  of  what  the  legislator  expressly  made  a 
positive  one.  T. 

f  A  port  of  Zealand,  in  the  island  of  Schouwen,  at  the  mouth  of  (lie 
Scheldt.  T. 

J  C.  4.  p.  30. 


TREATISE  ON  THE  LAW  OF  WAR.  91 

the  27th  of  January  1631,  that  the  vessel  should  be  con- 
demned, as  being  within  the  edict  of  the  26th  June  1630.*  f 
What  is  said,  moreover,  in  this  third  article  about  a.  free  port, 
is  explained  by  the  fourth;  for  that  cannot  be  understood  to  be 
a  free  port,  which  is  under  the  same  king  or  government  with 
another  which  is  not  considered  as  such.:}: 

This  decree  of  the  26th  June  1630,  was  for  some  time  not 
carried  into  execution,  and  in  the  mean  while  a  free  com- 
mercial intercourse  in  1642  carried  on  with  Flanders.  During 
that  period  certain  neutral  vessels,  trading  thither  were  cap- 
tured by  our  vessels,  and  carried  into  Zealand.  The  contra- 
band goods,  however,  were  alone  detained  and  condemned, 
and  all  the  remainder  was  acquitted  and  released.  It  has  been 
asked  by  what  law  the  contraband  goods  were  condemned 
under  those  circumstances,  and  there  are  those  who  deny  the 
legality  of  their  condemnation. $  It  is  evident,  however,  that 
while  those  coasts  were  guarded  in  a  lax  or  remiss  manner, 
the  law  of  blockade,  by  which  all  neutral  goods  going  to  or 
coming  from  a  blockaded  port  may  be  lawfully  captured,  might 
also  have  been  relaxed;  but  not  so  the  general  law  of  war, 

*  Aitz.  1. 11. 

f  This  decree  appears  to  us  to  have  been  very  correct,  not  because  the 
vessel  hail  gone  into  a  port  of  her  own  country,  different  from  that  of  hep 
actual  destination,  which,  if  she  had  done  voluntarily,  would  have  been  a 
sufficient  excuse,  but  because  she  had  run  into  the  port  of  Yarmouth  to 
avoid  pursuit,  and  was  captured  coming  from  thence,  in  consequence  of 
which  she  was  clearly  within  the  letter  of  the  third  article  of  the  edict.  71 

$.  The  4th  article  provides,  that  ships  coming1  out  of  enemy's  ports  shall 
be  condemned,  if  they  are  taken  before  they  shall  have  been  into  their  awn 
or  other  free  ports.  (~See  above,  p.  2Q.J  Our  author  impressed  with  the  idea 
that  the  words  their  mvn  in  the  3d  article,  only  meant  the  ports  of  their 
actual  destination,  and  being  embarrassed  by  the  words  or  other  free  port? 
in  the  4th  article,  which  clearly  point  to  the  opposite  construction,  thinks 
to  get  rid  of  his  embarrassment,  by  assuming  that  other  free  ports  cannot 
mean  ports  of  the  same  country,  that  is  to  say,  of  the  country  to  which  the 
neutral  belongs;  thus  arguing  in  a  circle  to  which  his  first  mistake  una- 
voidably led  him.  We  are  loth  to  controvert  the  opinions  of  so  great  a 
writer,  in  any  c'ase,  particularly  when  he  is  construing  a  law  of  his  ova. 
country;  but  in  the  present  instance  the  mistake  is  so  obvious  that  \ve  could 
not  avoid  noticing  it.  T 

§  Consil.  Holland,  vol.  2.  Consil.  21. 


92  TREATISE  ON  THE  LAW  OF  WAR. 

by  which  contraband  goods,  when  carried  to  an  enemy's  pert, 
even  though  not  blockaded,  are  liable  to  confiscation. 

But  although,  as  I  have  observed,  the  rigour  of  this  decree 
of  the  26th  June  1630,  may  be  sufficiently  justified,  it  may 
however,  be  relaxed,  if  it  shall  be  thought  proper,  and  it  has 
in  fact  often  been  relaxed.  When  admiral  Van  Tramp,  in  the 
year  1645,  blockaded  the  ports  of  Flanders,  with  the  fleet  of 
the  states-general,  and  asked  of  them,  what  he  should  do  with 
neutral  vessels,  they  decreed  on  the  1st  of  July,  that  neutrals 
should  by  all  means  be  prevented  from  entering  the  ports  of 
Flanders,  but  that  their  goods,  not  being  contraband,  should 
not  be  condemned.*  The  states,  on  that  occasion,  deviated 
from  the  principles  which  their  predecessors  had  adopted  in 
163O.  But  when  men  change,  what  is  there  to  prevent  opinions 
from  changing  likewise? 

If  the  principles  which  I  have  contended  for  in  this  and  the 
two  preceding  chapters  are  correct,  it  will  be  easy  with  their 
help,  to  decide  on  the  difference  which  took  place  between  the 
English  on  one  side,  and  the  Poles  and  other  nations  on  the 
other,  of  which  Zouch  gives  us  a  particular  account.!  \ 

*  Aitz.  1.  4.  Ibid.  1.  25. 

f  De  Jure  Fee.  p.  2.  §  8.  Q.  7. 

|  The  difference  to  which  our  author  alludes,  is  related  by  Zouch,  sub- 
stantially as  follows:  Queen  Elizabeth  being  at  war  with  Spain,  had 
prohibited  neutrals  from  carrying  on  any  trade  with  that  country.  The  am- 
bassador of  the  king  of  Poland,  in  the  name  of  his  master,  complained  of  it 
to  the  queen  herself,  in  terms  rather  indecorous,  to  which  she  replied  with 
becoming  dignity,  and  defended  her  conduct  by  alleging,  that  the  kings  of 
Poland  and  Sweden  liad  acted  in  the  same  manner  some  time  before  in  a 
similar  circumstance.  The  fact  was,  however,  that  those  sovereigns  in  the 
year  1572,  being  at  war  with  the  c/ar  of  Muscovy,  had  merely  prohibited 
the  intercourse  of  neutrals  with  the  ports  of  Livonia,  which  they  blockaded 
with  their  ships,  and  which  was  at  that  time  the  theatre  of  the  war  by  land, 
so  that  if  Zouch  is  correct  in  his  statement,  the  two  cases  were  not  parallel. 
But  Elizabeth  at  that  time  was  flushed  with  her  victory  over  the  invincible 
armada  of  Spain,  and  thought  that  there  were  no  bounds  to  her  maritime 
power. 

To  the  Hanse  Towns,  Seldcn  informs  us,  that  she  gave  as  a  reason  for  the 
same  proceeding,  of  which  they  also  complained,  that  their  ships  could  not  go 
to  Spain  without  passing  through  the  English  seas,  which  they  had  no  right  to 
do  without  her  permission.  Indeed,  that  author  tells  us  that  the  measure 


TREATISE  ON  THE  LAW  OF  WAR.  93 


CHAPTER  XII. 

Of  the  mixture  of  lawful  with  contraband  goods. 

T  F  a  neutral  carries  at  the  same  time,  lawful  and  unlawful 
•-  goods  to  the  enemy,  and  the  vessel  should  be  taken,  it  is 
asked,  "  whether  the  vessel  itself  and  the  lawful  goods  that 
are  on  board  are  to  be  condemned  on  account  of  those  which 
are  unlawful?"  The  same  may  be  asked,  if  from  any  other 
cause,  lawful  and  unlawful  goods  are  mixed  together.  This 
was  one  of  the  several  questions  which  were  proposed  in  the 
year  1631,  by  the  admiralty  of  Amsterdam  to  the  states- 
general,  for  the  interpretation  of  their  edict  of  the  1st  of  April 
1622.  But,  although  the  states  gave  their  answer  to  the  other 
questions  which  were  propounded  to  them  at  the  same  time, 
Aitzema  informs  us*  that  they  kept  this  under  advisement. 
And  I  do  not  find  that  any  decision  has  been  given  upon 
it,  either  at  that  time,  or  at  any  time  since;  the  states-ge- 
neral, however,  on  the  6th  of  May  1667,  gave  public  orders 
to  their  courts  of  admiralty,  that  they  should  not  condemn 
lawful  goods,  or  even  the  ship,  on  account  of  illicit  merchan- 
dize. Thus  much  and  no  more,  we  are  told  by  Aitzema,]  and 
the  states-general  express  themselves  in  the  same  general 
terms,  in  their  several  edicts  of  the  llth  September  16654 

was  not  merely  intended  by  Elizabeth  to  distress  her  enemies,  but  also  to 
assert  her  claim  to  the  dominion  of  the  seas  ("dominii  maris  causa.  J  From 
his  relation,  however,  and  that  of  other  respectable  writers,  such  AS 
Thuanus  and  Camdtn,  it  would  seem  that  the  prohibition  was  not  general, 
as  Zouc/i  represents  it,  but  was  restricted  to  warlike  stores  and  provisions, 
which  at  that  time  were  by  many  considered  as  contraband.  See  on  this 
subject,  Zouch,  ubi  supra. — Stlden,  Mare  Claus.  \.  2.  c.  20. — Cainden,  Anna!, 
sub  anno  l597.—Thuan.  Histor.  1.  96 — Marquard.  De  Jure  Merest,  p.  149. — 
Koch,  Hist,  des  Traitfs,  vol.  3.  p.  19—28.  T. 

*  L.  11.  t  L.  47. 

J  Consil.  Belg.  vol.  4.  Consil  206.  Q.  1>. 


94  TREATISE  ON  THE  LAW  OF  WAR. 

But  I  am  of  opinion  with  the  authors  quoted  by  Zouch,  in 
his  treatise  on  the  Law  of  Nations,*  that  there  is  a  wide  dis- 
,<tinction  to  be  made  between  the  case  where  both  the  lawful 
and  unlawful  goods  belong  to  the  same  owner,  and  that  in 
which  they  are  the  property  of  different  persons.  If  they 
belong  to  the  same  owner,  then  the  whole  may  be  lawfully 
condemned,  as  a  just  punishment  for  the  offence;  but  on  the 
contrary,  if  they  are  the  property  of  different  shippers,  then 
the  act  of  one  of  them  ought  not  to  affect  the  others.  This 
distinction  was  very  properly  taken  by  the  Dutch  lawyers,  on 
the  31st  of  July  1692.f  The  Digest\  also  affords  a  strong 
argument  in  favour  of  this  opinion,  where,  speaking  of  the 
owner  of  the  vessel,  Paulus  distinguishes  whether  he  knew 
or  not  that  unlawful  goods  had  been  laden  on  board;  if  he 
knew  of  it,  as  if  it  was  done  in  his  presence,  the  law  in  that 
case  declares  that  the  ship  also  is  forfeited;  if  on  the  con- 
trary it  had  been  done  in  his  absence,  and  therefore  he  did 
not  know  of  it,  then  the  vessel  is  to  be  restored  to  him  be- 
cause he  is  not  in  fault.  Zouch^  however,  without  making 
any  distinction,  relates  a  case  from  Petrinus  Bellus,  by  which 
it  would  seem  that  lawful  goods  had  been  condemned  on 
account  of  others  which  were  illicit,  but  on  referring  to  that 
author,ff  it  appears,  that  in  that  particular  case,  both  the  lawful 
and  unlawful  goods  belonged  to  the  same  owner,  who  knew 
of  the  fraud,  and  therefore  was  properly  punished  with  the 
confiscation  of  both:  But  of  this  we  shall  speak  more  at  large 
presently. 

In  the  meanwhile  we  shall  turn  our  attention  to  the  treaties 
and  laws  of  our  country,  which  have  been  made  upon  the 
subject.  By  the  treaty  of  navigation  between  Spain  and  the 
states-general,  of  the  4th  of  February  1648,  and  the  12th 
article  of  the  marine  treaty  between  the  same  powers  of  the 

*  De  Jure  Fee.  p.  2.  §  8.  C^  13.  In  the  original,  the  reference  is  by 
mistake  to  Q.  3.  T. 

j  Consil.  Belg.  vol.  4.  Consil  210. 

t  ff  de  Public.  &  Vectigal.  1.  1.  $  2. 

§  Ulti  supra. 

U  Zouch  does  not  point  out  where  the  passage  is  to  be  fouml,  but  it  is  in 
fr-llvs'.-:  Treatise  De  Pe  Militari,  part  9.  22.  26.  27.  28, 


TREATISE  ON  THE  LAW  OF  WAR.  95 

17th,  1650,  it  Js  simply  agreed,  "  that  it  shall  not  be  lawful 
for  the  subjects  of  either  country  to  carry  contraband  goods 
to  the  enemy  of  the  other,  otherwise,  that  such  goods  shall  be 
confiscated.  The  same  stipulation  is  contained  in  the  24th  and 
36th  articles  of  the  treaty  between  France  and  the  states- 
general  of  the  27th  of  April  1662,  but  without  any  particular 
provision  as  to  goods  not  contraband.  In  like  manner,  the 
several  edicts  of  the  states-general  against  the  English  and 
against  the  English  and  French*  after  enumerating  a  long 
series  of  contraband  articles,  direct  the  confiscation  of  these, 
without  saying  any  thing  as  to  lawful  goods  which  may  be 
found  with  them. 

But  by  the  7th  article  of  the  marine  treaty  between  Charles 
II.  of  England  and  the  states-general,  a  distinction  is  clearly 
made  between  lawful  and  contraband  goods,  and  the  latter,  but 
not  the  former,  are  declared  liable  to  confiscation;  nay,  if  the 
unlawful  goods  are  immediately  delivered  up  to  the  captors, 
the  ship  is  to  be  instantly  released,  with  the  remainder  of  the 
cargo,  and  suffered  to  proceed  on  her  destined  voyage.  A 
similar  provision  is  made  in  a  variety  of  other  treatiesf  in 
which  they  differ  from  the  edicts  above  mentioned,  which 
direct  the  ships  to  be  sent  into  port  for  legal  adjudication,  in 
all  cases  where  contraband  goods  are  found  on  board.  By  the 
7th  article  of  the  treaty  of  commerce  between  the  king  of 
Sweden  and  the  states-general  of  the  26th  of  November  1675, 
it  is  only  stipulated  that  contraband  goods  shall  be  confiscated, 
but  not  the  ship  or  lawful  merchandize.  No  provision  is 
made,  as  in  the  other  treaties,  for  the  immediate  release  of  the 
vessel  and  of  the  innocent  part  of  the  cargo.:}: 

*  Of  the  19th  of  March  1655, 14th  of  April  1672,  and  llth  of  April  1673. 

•f  Marine  treaty  between  the  Swedes  and  the  states-general  of  the  12th  of 
October  1679,  art.  21.  26. — Treaty  of  commerce  between  France  and  the 
states-general  of  the  10th  of  August  1678,  art.  21.  26. — Treaty  of  commerce 
bet  ween  the  same,  of  the  20th  September  1697,  art.  26.  31.— and  of  the  llth 
of  April  1713,  art.  25.  30. 

J  In  the  treaties  of  the  United  States  with  other  nations,  the  most  liberal 
principle  has  been  adopted  in  respect  to  the  seizure  of  vessels  having  con- 
traband goods  on  board  going  to  the  enemy.  By  the  17th  article'  of  our 
treaty  with  Great  Britain  of  the  19th  November  1794,  it  was  stipulated 


96  TREATISE  ON  THE  LAW  OF  WAR. 

Such  are  the  rules  laid  down  by  our  own  laws  and  treaties, 
and  if  we  are  to  infer  from  them  what  the  law  of  nations  is, 
it  will  follow  as  a  principle,  that  ships  and  lawful  goods  are 
never  to  be  condemned  on  account  of  contraband  merchandize 
carried  on  board  of  the  same  vessel.  But  it  is  not  from  thence 
that  the  law  of  nations  is  to  be  deduced.  Reason,  as  we  have 
said  before,  is  the  supreme  law  of  nations,  and  she  does  not 
permit  that  we  should  understand  these  things  altogether 
generally  and  without  distinction.  As  to  the  vessel,  I  think 
that  it  ought  to  be  distinguished,  whether  she  belongs  to  the 
captain  himself  or  to  others.  If  to  the  captain,  I  should  here 
again  distinguish,  whether  he  knew  (as  is  most  frequently  the 
case)  that  contraband  goods  had  been  shipped  on  board  of 
her,  or  whether  he  was  ignorant  of  it;  as  if  the  mariners,  in 
his  absence,  had  concealed  such  goods  on  board.  If  he 
knew  of  it,  he  is  himself  guilty  of  the  fraud,  because  he 
hired  his  ship  for  an  unlawful  purpose,  and  she  ought  there- 
fore to  be  confiscated;  but  it  is  otherwise,  if  he  did  not  know 
it,  because  in  that  case,  the  fraud  cannot  be  laid  to  his  charge. 
Such  is  the  doctrine  laid  down  by  Paulus,*  and  it  is  evidently 
conformable  to  the  dictates  of  sound  reason  and  of  common 
sense.f 

"  that  in  all  cases  where  vessels  should  be  captured  or  detained  ion  just 
suspicion  of  having  on  board  enemy's  property,  or  of  carrying  to  the  enemy 
any  of  the  articles  which  are  contraband  of  war,  the  said  vessel  should  be 
brought  to  the  nearest  and  most  convenient  port;  and  if  any  property  of  an 
enemy  should  be  found  on  board  such  vessel,  that  part  only  which  belonged 
to  the  enemy  should  be  made  prize,  and  the  vessel  should  be  at  liberty  to 
proceed  with  the  remainder,  without  any  impediment.— 2  Laws  U.  S.  483 — 
and  by  our  convention  with  France  of  the  30th  September  1800,  art.  20,  it 
was  agreed,  that  in  case  the  vessels  of  either  party  should  be  captured  for 
carrying  contraband  to  the  enemy,  the  contraband  goods  only  should  be 
condemned,  "saving  always  the  ship  and  the  other  goods  which  it  should 
contain."  6  Lawt  U-  S.  append,  xxxii.  T. 

*  ff.  dc  Public.  &  Vectig.  1.  11.  $  2. 

t  At  present,  neutral  ships  are  not  confiscated  for  carrying  contraband 
goods  to  the  enemy,  though  with  the  master's  knowledge.  The  Neutralitx t, 
3  Rob.  240.  The  Mercurius,  1  Rob.  242.  The  Jonge  Tobias,  1  Rob.  277- 
Am.  edit.  T 


TREATISE  ON  THE  LAW  OF  WAR.  97 

The  same  is  to  be  said  if  the  vessel  belongs  to  another  per- 
son, for  Paulus  applies  his  principle  to  the  master  only.  If, 
therefore,  the  master  has  taken  illicit  goods  on  board,  without 
the  knowledge  of  the  owners,  their  ship  shall  not  be  con- 
fiscated; but  the  law  will  be  otherwise,  if  they  knew  of  their 
being  shipped,  and  thus  have  become  parties  to  the  unlawful 
act.  It  would  be  unjust,  that  the  owners  should  suffer  for 
the  act  of  the  master;  but  it  is  right  and  proper  that  they 
should  suffer  for  their  own.  This  distinction  between  the 
knowledge  and  ignorance  of  the  captain  is  not  so  frequent  at 
this  time  as  it  was  formerly,  because,  according  to  the  present 
usage,  the  master  is  in  the  habit  of  signing  bills  of  lading  of 
the  merchandize  shipped  on  board  of  his  vessel,  by  which  he 
promises  that  he  will  take  good  care  of  it  for  the  shippers. 
It  may,  however,  still  apply,  if  nevertheless,  unlawful  goods 
should  be  privately  conveyed  on  board  of  the  vessel,  without 
the  knowledge  of  the  master.  But  as  to  owners  of  the  ship, 
others  than  the  master,  the  rule  may  have  even  now  a  frequent 
application. 

As  to  the  owners  of  the  goods,  I  think,  that  for  the  same 
reason,  a  distinction  ought  also  to  be  made,  as  I  have  said 
above,  and  it  ought  to  be  distinguished,  whether  all  the  goods 
belong  to  one  and  the  same  person,  or  to  several.  If  to  one 
and  the  same,  I  think  that  the  whole  may  justly  be  confiscated, 
exactly  as  by  the  Roman  law  in  revenue  cases,  if  any  one 
carries  at  the  same  time  lawful  and  unlawful  merchandize,  and 
declares  the  one  and  conceals  the  other,  both  are  confiscated 
on  account  of  the  fraud  of  the  carrier,  as  the  commentators  on 
the  title  of  the  Digest  De  Publicanis  &  Vectigalibus*  have 
properly  collected  from  the  text  of  that  law  itself,  and  from 
the  third  law  of  the  code  De  Nautico  Fcenore.\  Others  are 
pleased  with  another  distinction,  to  wit:  whether  the  lawful 
goods  may  be  easily  separated  from  the  unlawful;  if  they  can- 
not, then  they  are  of  opinion,  that  the  whole  is  to  be  con- 
demned, otherwise  the  contraband  goods  alone  are  to  be 
confiscated,  and  the  remainder  to  be  released  without  consi- 

*  L.  11.  $2. 

t  See  that  law  translated  in  the  American  Law  Journal,  vol.  3.  p.  15.5.     T. 

fN 


98  TREATISE  ON  THE  LAW  OF  WAR. 

• 

tiering  whether  it  belongs  to  the  same  owner  or  not.  But  this 
distinction,  as  the  separation  can  always  be  made,  is  neither 
founded  on  reason,  nor  on  any  authority  of  law.  It  is  more 
reasonable,  and  at  the  same  time  more  consonant  to  legal 
principles,  to  distinguish  whether  the  lawful  goods  belong  to 
another  than  the  author  of  the  fraud;  then  the  principle  pro- 
perly applies,  that  one  person  should  not  be  deprived  of  his 
goods  for  the  fraud  of  another.  This  doctrine  may  be  sup- 
ported by  a  variety  of  authorities  taken  from  the  Roman  law, 
in  analogous  cases;  as  if  one  of  several  co-heirs  defrauds  the 
revenue  of  the  tax  on  dutiable  property  belonging  to  the  estate 
of  the  deceased,  the  shares  of  the  other  heirs  are  not  on  that 
account  to  be  confiscated.*  In  the  same  manner,  if  the  farmer 
or  servants  of  a  landholder  should  manufacture  iron  on  his 
estate,  contrary  to  law,f  if  it  should  be  done  without  the 
knowledge  of  the  owner,  he  shall  not  suffer  any  penalty,:}:  nor 
shall  the  bottomry  or  respondentia  creditor  suffer,  if  by  the 
V )  fraud  of  his  debtor  in  shipping  unlawful  goods,  the  ship  and 
cargo  should  be  confiscated.^ 

But  what  if  the  owners  of  lawful  goods  should  merely  have 
known  that  others  had  laden  unlawful  merchandize  on  board 
of  the  same  vessel?  Shall  this  mere  knowledge  occasion  also 
the  confiscation  of  the  lawful  goods.  Such  appears  to  have 
been  the  opinion  of  a  certain  lawyer,  which  is  recorded  in  the 
Consilia  Belglca^  but  I  do  not  agree  with  him,  nor  do  I  find 
that  he  is  supported  by  any  authority;  he  might,  perhaps, 
have  appealed,  (though  he  does  not  do  it),  to  the  abovemen- 
tioned  text  of  the  Digest,  where  it  is  said,  that  the  owner  is 
n,ot  to  suffer,  if  his  farmer  or  servants  have  manufactured  iron 
upon  his  estate  without  his  knowledge:  from  whence  he  might 
have  implied,  that  if  the  same  thing  is  done  with  the  know- 
ledge of  the  owner,  he  ought  to  be  punished,  because  it  was 

*  ff  de  Public,  et  Vectigal.  1.  8.  §  1. 

f  By  the  Roman  law,  no  individual  was  allowed  to  manufacture  arms 
without  the  special  permission  of  the  government.  Cod.  1.  10.  tit.  46. 
/.ex  unica.  Ut  armorum  u;us  inscio  prir.cipe  inter  Jittun  sit.  T. 

\  fF  de  Public,  et  Vect.  1.  16.  §  11. 

§  Cod.  de  Naut.  Fcen.  1.  3. 

f  Vol  4.  Consil.  10. 


TREATISE  ON  THE  LAW  OF  WAR.  99 

his  duty  to  forbid  it,  and  to  order  his  farmer  and  servants  not 
to  do  any  thing  unlawful  upon  his  estate.  But,  if  several 
owners,  as  is  often  the  case,  ship  their  goods  on  board  of  the 
same  vessel,  they  have  no  control  over  each  other,  nor  over 
the  master  who  receives  the  goods  on  freight.  Therefore,  the 
owner  of  the  lawful  goods  ought  not  to  suffer  for  what  he 
cannot  prohibit;  he  might,  indeed,  not  have  shipped  his  goods 
on  board  of  that  vessel,  but  if  it  was  not  convenient  for  him  so 
to  do,  he  cannot  be  made  answerable  for  the  act  or  fraud  of 
another  person.* 

Such  is  my  opinion,  and  I  wish  that  the  several  treaties  and 
edicts  which  I  have  cited,  had  spoken  more  explicidy  upon 
the  subject.  It  will  be  said,  perhaps,  that  the  distinctions 
which  are  not  therein  expressed,  are  to  be  tacitly  understood, 
and  that  thus  the  treaties  and  edicts  may  be  interpreted  ac- 
cording to  each  particular  case.  I  wish  that  I  could  be  of  that 
opinion;  but  I  fear  that  it  'cannot  be  done,  because  of  the  too 
great  generality  of  the  expressions.  What  Albericus  Gentilis 
has  written  on  all  these  subjects,  is  full  of  obscurity  and 
confusion.f 

*  By  the  law  of  France,  if  a  vessel  is  captured  with  contraband  on  board 
going  to  the  enemy,  the  contraband  goods  only  are  forfeited,  but  the  vessel 
and  the  remainder  of  the  cargo  are  to  be  released,  unless  the  contraband 
articles  amount  to  three-fourths  of  the  cargo,  in  which  case,  the  whole  of 
the  merchandize  on  board  is  to  be  condemned,  as  well  as  the  ship.  Ordin. 
of  the  26th  of  July  1778,  art.  1.  2.  Code  des  Prises,  672,  edit.  1784. 

The  rule  in  England,  is  to  condemn  only  the  contraband  articles,  and  to 
restore  the  rest  of  the  cargo  and  the  ship,  but  without  freight;  provided,  ; 
however,  that  they  belong  to  a  different  owner  from  that  of  the  illicit  goods, 
who  did  not  know  of  the  illegality  of  the  voyage,  and  was  not  by  himself  or 
his  agent,  concerned  in  any  fraud  or  concealment,  to  impose  upon  the  offi- 
cers of  the  belligerent  nation,  by  masking  the  real  destination  of  the  ship, 
covering  enemy's  property,  or  otherwise,  and  was  not  acting  in  violation  of  a 
treaty  of  his  own  country. — The  Mercurius,  Meincke,  1  Rob.  242. — The 
Mercurius,  Geddes,  ibid.  70.— The  Jonge  Tobias,  ibid.  278.— The  Princesa, 
2  Rob.  42 — The  Rosalie  &  Betty,  ibid.  292.— The  Franklin,  3  Rob.  183.— 
The  Neutralist,  3  Rob.  240.  Amer.  edit.  T. 

f  De  Advoc.  Hispan.  1.  1.  c.  20. 


10Q  TREATISE  ON  THE  LAW  OF  WAR. 


CHAPTER  XIII. 

Of  Neutral  Goods  found  on  board  of  the  ships  of  enemies. 

TN  the  year  1602,  after  the  conquest  of  Portugal  by  the 
-"•  Spaniards,  several  Portuguese  ships  were  captured  by 
the  Dutch,  who  were  then  at  war  with  Spain.  Grotius,  who 
relates  the  fact,*  says,  "  that  it  was  more  difficult  to  decide 
whether  the  goods  of  the  Italians  which  were  found  on  board 
of  the  captured  ships,  were  lawful  prize,"  and  he  adds,  "  that 
the  matter  was  decided  by  a  compromise  betiveen  equity  and 
the  law  of  rvar."  That  respectable  .writer,  therefore,  doubted 
whether  neutral  goods  found  on  board  the  ships  of  enemies, 
were  to  be  considered  as  enemy  goods;  but  he  entertained  no 
such  doubt  in  1625,  when  he  wrote  his  treatise  De  Jure  Belli 
ac  Pads;  for  in  that  work  he  expressly  says:  "  That  nothing  is 
acquired  by  the  law  of  war,  but  what  belongs  to  the  enemy, 
and  not  the  property  of  neutrals,  although  it  be  found  on  the 
enemy's  territory;"  and  he  infers  from  thence,  that  the  vulgar 
saying,  "that  goods  found  on  board  of  an  enemy's  ships  are  to 
be  considered  as  belonging  to  the  enemy,"  is  not  warranted  by 
the  law  of  nations,  but  that  such  are  only  to  be  presumed  enemy 
goods,  until  the  contrary  is  proved.  He  adds,  that  it  was  so 
decided  in  Holland,  in  full  court,  in  the  year  1338,  while  we 
were  at  war  with  the  Hanse  Towns,  and  that  that  decision  has 
passed  into  a  law.f  He  gives  it  his  approbation  in  another 
place,  where  he  treats  of  the  same  subject.}: 

I  must  own,  that  I  blush  at  my  ignorance,  for  not  having 
been  able  to  find  that  decision  of  the  year  1338,  nor  can  I  un- 
derstand by  what  court  it  was  pronounced;  for  it  is  a  fact  of 
public  notoriety,  that  it  was  not  until  near  a  century  aftcr- 

*  Hist,  Belg.  1.  11.  sub  anno  1602. 
t  De  Jure  B.  ac  P.  1.  3.  c.  6.  $  5. 
\  Not.  ad  1.  3.  de  J.  B.  ac  P.  c.  1.  §  5. 


TREATISE  ON  THE  LAW  OF  WAR. .          1Q1 

wards,  that  the  court  of  Holland  was  instituted  by  Philip 
of  Burgundij*  This,  indeed,  was  corrected  by  Grotius,  in  a 
new  edition  of  his  book,  in  which  he  substituted  the  year 
1438  instead  of  1338.*  But  in  the  latest  edition,  published  in 
1 632,  in  the  octavo  form,  (which  Grotius  himself  certifies  to 
be  entirely  correct),  the  year  1338  is  again  mentioned,  and 
this  date  has  been  followed  by  those  who  have  quoted  that 
passage  out  of  his  book.f  Even  my  learned  friend  Barbeyrac 
has  preserved  the  same  year  1338,  in  his  French  translation 
of  Grotius, \  and  attributes  that  decree  to  the  states-general^ 
although  they  never  exercised  judicial  powers,  nor  ever  were 
considered  as  a  court  of  judicature;  at  any  rate,  the  true  date 
of  it  must  be  the  year  1438,  as  Grotius  alludes  to  the  Hanseatic 
war,  of  which  there  is  a  book  preserved  among  the  archives 
of  the  court  of  Holland,  entitled  Oosterlingen.§ 

Although  that  decree  of  the  year  1438,  has  escaped  my 
diligent  inquiry,  I  nevertheless  believe  Grotius's  assertion, 
without  requiring  any  other  proof  of  the  fact,  and  I  can  easily 
conceive  how  others  have  followed  his  opinion  on  the  credit 
of  his  character  alone,  and  without  its  being  supported  by  any 
other  authority.  Thus  Loccenius\  speaks  of  the  principle 
which  Grotius  lays  down  as  being  established  law,  and  so  do 
the  six  advocates  whose  opinions  are  recorded  in  Consilia 
Belgica.^  I  think,  however,  that  they  go  too  far  when  they 
seem  to  intimate  that  it  would  be  otherwise  if  public  notice 

*  In  what  we  believe  to  be  the  last  edition  of  Cretins' 's  work,  Utrecht  1773. 
the  error  appears  to  have  been  corrected.  The  decree  there  is  said  to  have 
been  pronounced  in  1438.  T. 

I  Zoitch,  de  Jure  Fee.  p.  2.  §  8.  Q:  25— Consil.  Belg.  vol.  3.  Consil  253. 

\  It  is  not  so  in  the  Amsterdam  edition  of  Barbeyrac's  translation,  printed 
in  1724,  which  Mr.  Bynkershoek,  it  seems,  had  not  before  him  when  he 
composed  this  work.  The  decree  there  is  said  to  have  been  given  in 
1438.  T. 

§  Or  the  Easterlings;  by  which  name  the  inhabitants  of  the  Hansc  Towns 
were  formerly  known.  T. 

||  l?es  in  fwstittm  navibus  repertte  prcesumuntur  esse  hostium,  donee  contrarium 
probetur.  Things  found  on  board  the  enemy's  ships  are  presumed  to  belong 
to  the  enemy,  until  the  contrary  is  proved.  Loccen,  De  jfitre  Marit.  1.  2. 
c.  4  n.  11.  T 

If  Ubi  supra. 


102  TREATISE  ON  THE  LAW  OF  WAR. 

had  been  given  that  no  neutral  should  ship  his  goods  on  board 
of  an  enemy's  vessel,  or  if  he  who  shipped  them,  was  ignorant 
of  the  war.* 

If  by  the  general  law  of  nations,  it  is  lawful  for  a  neutral 
to  ship  his  goods  on  board  of  an  enemy's  vessel,  I  cannot 
conceive  how  it  can  be  rendered  otherwise  by  the  procla- 
mation of  a  belligerent  sovereign.  I  am  at  liberty  to  carry  on 
trade  with  two  nations,  who  are  in  friendship  with  me,  but  at 
war  with  each  other,  unless  I  am  prevented  by  express  or 
tacit  conventions,  (as  is  almost  always  the  case  with  respect  to 
contraband;}  what,  then,  if  one  of  those  nations,  without  the 
consent  of  the  other,  should  prohibit  altogether  my  trading 
with  her  enemy?  Such  an  interdiction  would  be  unjust  as  to 
all  but  the  subjects  of  the  prohibiting  nation.  Grotius  appears 
to  have  been  of  this  opinion,!  otherwise  he  justly  thinks  that 
respect  is  due  to  the  public  proclamations  of  sovereigns,  and 
that  they  are  not  to  be  disregarded  with  impunity. 

As  to  the  other  point,  what  matters  it,  whether  he  who 
has  shipped  his  goods  on  board  of  the  enemy's  ship,  did 
or  did  not  know  of  the  war?  Suppose  that  he  did  know  of  it, 
and  that  he  also  knew  that  the  ship  belonged  to  an  enemy,  the 
question  will  still  recur,  whether  he  has  acted  lawfully  or  un- 
lawfully in  shipping  the  goods?  These  fine  spun  niceties, 
although  they  may  serve  to  make  a  display  of  legal  ingenuity, 
cannot  fail  to  be  rejected  by  those  who  follow  the  rules  of  plain 
unsophisticated  common  sense. 

Before  I  express  my  own  opinion,  I  must  first  consult  the 
treaties  which  have  been  made  between  different  nations  upon 
the  subject.  As  far  as  I  can  understand,  they  nearly  agree 
with  the  French  law,  which  is  laid  down  by  Mornac,\  que  la 
robe  dc  Vennemi  confisque  celle  de  rami.§  Grotius\\  attempts 

*  The  same  opinion  is  given  in  Consil.  Belg.  vol.  4.  Consil.  207. 

f  Ubi -supra,  not.  4. 

\  Ad  1.  Petiull.  §  1.  ff*.  locati  conduct!. 

§  "  That  the  poods  of  an  enemy  produce  the  confiscation  of  those  of  a 
friend."  The  word  robe  in  the  old  French  idiom  signified  effects,  goods, 
furniture,  vxarlng  apparel  and  the  like.  Poba  in  Italian,  ropa  in  Spanish,  and 
rcwpa  in  Portuguese,  at  this  day,  mean  the  same  thing.  T. 

'In  not.  ad  1.  3.  de  J.  B.  ac  P.  c.  6.  §  6. 


TREATISE  ON  THE  LAW  OF  WAR.  103 

to  explain  away  the  rigour  of  this  law,  and  understands  it  to 
mean,  that  if  enemy  goods  are  shipped  on  board  of  a  neutral 
vessel,  -with  the  consent  of  the  owner  of  the  ship,  then  the  ship 
herself,  though  neutral,  is  liable  to  confiscation.*  But  this  is 
not  the  subject  before  us,  and  will  be  treated  in  the  next 
chapter.  If,  however,  the  consent  of  the  owner  of  the  vessel 
is  the  cause  of  her  confiscation,  why  do  we  not  confiscate 
neutral  goods,  which,  with  their  owner's  consent,  are  shipped 
on  board  of  an  enerny^s  vessel?  Of  this,  Grotius  has  said 
nothing,  and  yet  the  rule  of  reciprocity  required  that  the 
same  law  should  be  applied  to  both  cases. 

But  if,  setting  aside  for  a  moment  these  considerations,  we 
turn  to  the  treaties  themselves:  we  shall  find  that  they  all 
simply  stipulate,  that  "  neutral  goods  found  on  board  of  an 
enemy's  vessel,  are  liable  to  confiscation."!  In  this  they  have 
adopted  the  principle  of  the  old  French  law,  which  confiscates 
the  goods  of  neutrals  merely  because  they  are  found  on  board  of 
the  vessel  of  an  enemy,:):  and  therefore  do  not  agree  with  what 
Grotius  states  to  have  been  decided  by  the  court  of  Holland^ 

*  But  Valin  rebukes  him  strongly  for  entertaining  this  opinion.  "  Grotius," 
says  he,  "  pretends  that  our  ordinances  are  to  be  understood  with  this  re- 
striction; it  would,  if  it  were  admitted,  furnish  an  excuse  to  the  neutral 
master,  with  which  he  never  would  fail  to  elude  the  confiscation  of  his 
vessel  and  the  remainder  of  his  cargo."  Valin,  Traiie"  dcs  Prises,  p.  64. 

There  is  no  doubt  that  such  was  the  ancient  law  of  France,  and  that  it 
confiscated  alike  neutral  goods  found  on  board  the  enemy's  ships,  and 
neutral  ships  carrying  enemy's  goods;  so  true  it  is,  that  injustice  has  always 
followed  power.  T. 

f  Marine  treaty  between  Spain  and  the  states-general  of  the  17th  De- 
cember 1650,  art.  13. — Treaty  of  commerce  between  France  and  the  states- 
general  of  the  27th  of  April  1€62,  art.  35. — Treaty  between  the  same 
powers  of  the  10th  of  August  1678,  art.  22.— Of  the  20th  of  September 
1697,  art.  27.— llth  of  April  1713,  art.  26.— Between  England  and  the  states- 
general,  1st  of  December  1674,  art.  8. — Sweden  and  the  states-general  of 
the  26th  of  November  16/5,  art.  — .  And  12th  of  October  1679,  art  22. 

\  But  by  the  same  treaties,  as  will  be  seen  in  the  next  chapter,  it  was  071 
the  other  hand  stipulated  that  enemy's  goods  found  on  board  of  neutral 
ships  should  not  be  liable  to  confiscation,  or  in  other  words,  that  free  ship* 
should  make  free  goods;  so  that  if,  in  one  respect,  they  were  conformable  to 
the  old  severe  law  of  France,  they  established  upon  the  whole,  the  more 
equitable  principles  of  the  modern  ICI°K  of  natior.g.  T. 


104  TREATISE  ON  THE  LAW  OF  WAR. 

and  to  have  obtained  the  force  of  a  law.  It  is  true,  that  the 
treaties  which  I  have  related  are  subsequent,  and  that  the) 
are  of  no  force  except  between  those  who  are  parties  to  them. 
But  the  rule  which  they  establish  cannot  be  defended  on 
rational  principles:  for  why  should  I  not  be  allowed  to  make 
use  of  my  friend's  ship  to  carry  my  property,  notwithstanding 
his  being  at  war  with  you?  If  treaties  do  not  prohibit,  I  am  at 
liberty,  as  I  have  already  saH,  to  trade  with  your  enemy;  and 
if  so,  I  may  likewise  enter  into  any  kind  of  contract  with  him, 
buy,  sell,  let,  hire,  &c.  Therefore,  if  I  have  engaged  his  vessel 
X  <  and  his  labour,  to  carry  my  goods  across  the  seas,  I  have  done 
that  which  was  lawful  on  every  principle.  You,  as  his  enemy, 
may  take  and  confiscate  his  ship,  but  by  what  law  will  you  also 
take  and  confiscate  the  goods  that  belong  to  me,  who  am  your 
friend?  All  that  I  am  bound  to  do,  is,  to  prove  that  they  are 
really  mine;  for  here  I  agree  with  Grotius,  that  there  is  some 
room  for  presuming,  that  goods  found  on  board  of  an  enemy's 
vessels  are  the  property  of  the  enemy. 

But  what  shall  we  say,  if  the  owners  of  the  goods  knew  and 
consented  that  they  should  be  shipped  on  board  of  the  vessel 
of  their  friend,  indeed,  but  of  your  enemy?  I  should  think 
that  this  knowledge  and  consent  do  not  authorize  a  confisca- 
tion. The  matter  depends  upon  this  only  question,  whether 
the  owners  of  the  goods,  in  shipping  them  on  board  of  an 
enemy's  vessel  have  acted  lawfully  or  unlawfully?  I  have 
contended  for  the  former  position,  because,  as  I  may  lawfully 
carry  on  any  kind  of  trade  with  your  enemy,  I  think  that  I 
may  therefore  enter  with  him  into  any  kind  of  contract,  and 
make  use,  for  a  valuable  consideration,  of  his  ship  for  my 
own  utility.  Take,  if  you  can,  every  thing  which  belongs  to 
your  enemy,  but  restore  to  me  what  is  my  own,  because  1  am 
your  friend,  and  in  shipping  my  goods,  I  have  not  intended  to 
do  you  any  injury. 

With  what  I  have  said,  nearly  agrees  what  is  laid  down 
in  the  Consolato  del  Mare,  to  wit:  "  that  the  enemy's  ship 
when  taken,  belongs  to  the  captors,  and  the  neutral  goods  to 
the  owners  thereof,  but  that  those  owners  may,  if  they  are 
present,  compound  for  the  purchase  of  the  vessel,  and  thus  be 


TREATISE  ON  THE  LA.W  OF  WAR.  105 

enabled  to  prosecute  their  voyage.*  If,  however,  a  composition 
does  not  take  place,  the  vessel  may  be  carried  into  a  port  of 
the  captor,  but  still  the  goods  are  to  be  restored  to  their 
owners,  on  paying  the  freight  thereof,  in  the  same  manner  as 
if  the  voyage  had  been  performed."  I  approve  of  this  general 
doctrine;  but  what  is  said  there  on  the  subject  of  freight,  I  can- 
not admit  to  be  founded  in  law.  I  understand  very  well,  that 
he  who  has  taken  the  vessel,  has  also  taken  all  the  right 
arising  out  of  it  which  belonged  to  her  or  to  the  master;  but 
the  freight  was  not  due  to  the  ship,  nor  to  the  captain,  unless 
the  goods  had  been  carried  to  their  destined  port.f  The  ques- 
tion, however,  is  asked,  whether,  if  a  ship  is  taken  in  the 
course  of  her  voyage,  the  owner  of  the  goods  on  board  is 
obliged  to  pay  freight  to  the  captor?  I  answer,  that  if  the  captor 
is  ready  to  carry  the  ship  with  the  goods  to  the  place  of  their 
destination,  I  think  that  he  is  entitled  to  demand  his  freight, 
otherwise  I  am  of  opinion  that  he  is  not.  The  shipper  is  suffi- 
ciently punished  for  his  imprudence,  in  putting  his  goods  on 
board  an  enemy's  vessel,  when  he  is  obliged  to  claim  them  at 
his  own  expense,  and  to  carry  them  away  at  his  own  risk.  I 
have  shewn,  in  a  former  chapter,:}:  that  difficult  questions  will 
arise  respecting  this  matter  of  freight,  and  that  it  requires  a 
sound  judgment  to  form  a  correct  opinion  upon  them. 

*  Consol.  del  Mar.  c.  27.3.  This  chapter  has  been  elegantly  translated  into 
English,  by  the  learned  Dr.  Robinson,  and  is  bound  together  with  his  inter- 
esting' collection,  entitled,  Collectanea  Maritima,  London,  Butler-worth  1801- 
The  passage  referred  to  by  our  author,  is  in  that  translation  marked  §§  6  &  7. 
In  M.  Boucher's  French  translation,  it  is  c.  276.  §§  1012,  1013,  vol.  ii.  p.  511. 

•j-  This  doctrine  of  our  author  is  fully  recognised  in  England,  where  the 
captor  of  an  enemy's  ship  is  not  considered  as  entitled  to  freight  on  neutral 
goods,  unless  he  has  carried  them  to  the  port  of  their  destination.  The 
Fortuna,  4  Rob.  228.  Am.  edit.  It  is,  however,  allowed  in  certain  cases, 
when  the  goods  are  brought  to  the  claimant's  own  country.  The  Diana, 
5  Rob.  64.  Am.  edit. 

|  C.  10.  pt  80. 


106          TREATISE  QN  THE  LAW  OF  WAR. 


CHAPTER  XIV. 

Of  Enemy's  Goods  found  on  board  of  neutral  ships. 

IF  a  neutral  ship  be  taken, having  enemy's  property  on  board, 
two  questions  are  to  be  considered:  the  one,  whether  the 
neutral  ship  itself,  the  other,  whether  the  enemy's  goods  arc 
liable  to  confiscation? 

As  to  the  first  question,  if  we  follow  the  ancient  law  of 
France,  a  neutral  ship  will  be  liable  to  confiscation  for  carry- 
ing enemy's  goods.  That  such  was  the  law  of  France,  in 
ancient  times,  is  clear,  by  the  exemption  from  it  granted  to  the 
Hanse  Towns,  in  their  treaty  with  that  country  of  the  10th  of 
May  1655.  Grotius,  in  the  passage  mentioned  in  the  preceding 
chapter,  is  of  opinion,  that  the  French  law  does  not  extend 
farther  than  to  the  case  of  a  neutral  ship,  the  owner  of  which 
knowingly  receives  enemy's  goods  on  board,*  relying  on  that 
law  of  the  Digest\  in  which,  as  I  have  said  above, \.  a  dis- 
tinction is  made  between  the  master's  knowing  and  his  being 
'ignorant  of  unlawful  goods  being  laden  on  board  of  his  ship; 
in  the  first  case,  but  not  in  the  second,  the  law  directs  the  ship 
to  be  confiscated.  Loccenius§  also  distinguishes  the  present 
case  in  the  same  manner. 

*  See  the  note  *  p.  103. 

|  Dominus  navis,  si  UlidtZ  illiquid  in  nave,  vel  ipse,  <vel  vectores  impositerint,. 
weis  quoquefisco  vindicatur.  Quod  si  absente  Domino,  d  magistro  <vel  guberna- 
tore  out  proretd  nautave  aliquod  id  Jactum  sit:  ipsi  quidctn  capite  puniuntu> , 
commitsis  mercibus,  navis  ;i.,-.V7w  Domino  restitititur.  If  the  owner  of  the 
ship  or  any. of  the  passengers  shall  put  any  thing  unlawfully  on  board, 
the  ship  shall  also  be  confiscated.  If,  however,  it  shall  have  been  done  in 
the  absence  of  the  owner,  by  the  master,  mate,  or  some  of  the  mariners, 
they  shall  be  capitally  punished,  and  the  goods  shall  be  confiscated,  buttho 
ship  shall  be  restored  to  the  owners,  ff.  rfe  Pub'ic.  \$  lrcctig.  1.  11.  §  2. 

1  C.  12.  p.  94 

$  Ubi  .nipra. 


TREATISE  ON  THE  LAW  OF  WAR.  107 

This  distinction  of  Paulus*  between  the  knowledge  and 
ignorance  of  the  master  of  the  ship,  is  certainly  very  im- 
portant, and  has  been  very  much  attended  to  in  the  Roman 
law,  but  now  is  hardly  of  any  force  if  the  vessel  belongs  to  the 
master  himself;  for  it  is  generally  he  who  receives  the  goods, 
and  who  attests  their  shipment  by  an  instrument  commonly 
called  a  bill  of  lading.  It  is  of  greater  use,  if  the  ship  belongs 
to  other  owners  than  the  captain,  and  he  has  received  the 
goods  without  their  knowledge,  as  I  have  already  shewn  in 
another  place,  f  It  may,  however,  be  doubted,  whether  other 
owners,  if  they  have  given  a  special  authority  to  the  master  to 
take  goods  on  freight,  and  he  has  shipped  unlawful  merchan- 
dize, are  not  bound  for  his  act?  In  general  the  rule  is,  that  he 
who  entrusts  an  unfit  person  with  his  business,  is  answerable 
for  his  faults  and  for  the  frauds  that  he  commits;  and  if  a  dis- 
tinction is  made  between  the  master  and  another  owner  of  the 
vessel,  the  question  will  present  itself  in  a  pretty  difficult  point 
of  view.  But  this  is  not  the  ground  that  I  go  upon.  I  am  wil- 
ling to  admit,  that  the  owners  of  the  ship  are  bound  for  the 
act  of  the  master,  even  without  having  given  him  a  special 
authority;  that  the  receiving  of  the  goods  was  ordered  by  the 
owner  himself,  and  that  he  knew  in  every  case  what  goods 
were  shipped  on  board  of  his  vessel,  and  to  whom  they  be- 
longed; notwithstanding  all  that,  I  see  no  reason  for  confis- 
cating the  ship,  merely  for  having  enemy's  property  on  board, 
whether  or  not  the  owner  knew  of  or  gave  his  consent  to  it. 

I  do  not  grant  to  Grothts,  that  the  case  which  Paulus  speaks 
of  in  the  passage  which  he  cites,  extends  to  that  which  we  are 
now  contending  about.  Not  because  in  those  things  which 
depend  solely  upon  reason,  the  principles  of  the  law  of  nations 
may  not  safely  be  sought  for  in  the  rules  of  Roman  jurispru- 
dence, but  because  the  doctrine  of  Paulus  has  no  application 
here.  He  only  speaks  of  a  master  of  a  vessel,  who,  knowingly 
or  unknowingly,  carries  goods  in  fraud  of  the  revenue.  In  that 
case,  it  is  true,  that  if  the  master  acts  with  full  knowledge  of 
the  circumstances,  he  employs  his  vessel  and  his  labour  for  an 

*  The  author  of  the  abovementioned  passage  in  the  Digest.  T. 

|  Above,  c.  12.  p.  96. 


108  TREATISE  ON  T&E  LAW  OF  WAR. 

unlawful  purpose,  and  she  is  justly  liable  to  confiscation;  for 
he  who  conceals  and  knowingly  carries  on  board  of  his  vessel, 
goods  which  ought  to  be  declared  for  the  purpose  of  paying 
the  duties  thereon,  commits  a  fraud  upon  the  public.  And 
therefore,  at  present,  by  the  laws  of  almost  every  country, 
ships  which  are  employed  in  defrauding  the  revenue,  are  con- 
fiscated, for  no  other  reason  than  that  they  are  employed  in  an 
illegal  act. 

I  have  myself  adopted  the  same  distinction  of  Paulus,  with 
respect  to  contraband  goods,*  and  have  given  it  as  my  opinion, 
that  if  such  goods  were  shipped  on  board  of  a  neutral  vessel, 
to  be  carried  to  the  enemy,  with  the  knowledge  of  the  owners, 
the  ship  itself  is  also  liable  to  be  confiscated,  unless  there 
should  be  treaties  to  the  contrary;  because  the  owners  in  such 
a  case  are  concerned  in  an  act  prohibited  by  law. 

But  now,  let  us  pause  and  consider,  whether  he  is  guilty  of 
any  offence  against  the  law  of  nations,  who  carries  on  board 
of  his  vessel  the  goods  of  his  friend,  although  that  friend  is 
your  enemy?  By  what  right  will  you,  who  are  my  friend,  cap- 
ture my  ship,  merely  because  she  carries  your  enemy's  goods: 
I,  who  am  a  friend  to  both  parties,  shall  serve  them  both,  in 
those  things  that  are  not  hurtful  to  either,  and  in  the  same 
manner  both  will  serve  me  in  things  that  are  indifferent.  On 
this  principle,  your  enemy  may  with  propriety  hire  his  vessel 
out  to  me,  and  I  am  at  liberty  to  hire  mine  out  to  him.  Of 
those  who  act  thus  innocently  and  without  fraud,  I  have 
treated  more  at  large  in  the  preceding  chapter,  and  if  what  I 
have  said  there  is  correct,  there  is  no  need  of  saying  any  more 
upon  this  question,  but  it  must  be  laid  down  as  a  principle, 
that  a  neutral  vessel  is  not  liable  to  be  confiscated  for  having 
enemy's  goods  on  board,  whether  the  owner  of  the  vessel  knew 
of  it,  or  not;  because,  in  either  case,  he  knew  that  he  was  en- 
gaged in  a  lawful  trade;  and  in  this  his  case  differs  from  that 
of  him  who  knowingly  carries  contraband  goods  to  the  enemy. 
Wherefore,  on  the  present  question,  I  do  not  admit  the  appli- 
cation of  the  distinction  made  by  Paulus;  but  I  approve  of  the 

*  Abovfc,  p.  96. 


c» 


TREATISE  ON  THE  LAW  OF  WAR.  1Q9 

opinion  which  was  given  in  general  terms  by  the  Dutch  lawyers, 
and  is  recorded  in  the  Consilla  Belgica,*  that  a  neutral  ship, 
although  laden  with  enemy's  goods,  is  not  liable  to  confiscation, 

We  will  now  proceed  to  consider  the  second  question, 
whether  the  enemy's  goods  themselves,  taken  on  board  of  a 
neutral  vessel  are  liable  to  confiscation?  Some  will  wonder, 
perhaps,  that  any  doubt  should  be  entertained  about  itf  as  it 
is  clearly  lawful  for  a  belligerent  to  take  the  property  of  his 
enemy.  And  yet,  in  all  the  treaties  which  I  have  cited  in  the 
preceding  chapter,!  there  is  an  express  stipulation,  that 
u  enemy's  goods  found  on  board  of  neutral  vessels,  shall  be 
free,"  or,  (as  we  commonly  express  it),  that  free  ships  shall 
make  free  goods,  except,  however,  contraband  of  war,  when 
carrying  to  the  enemy.  And  what  will  be  thought  more 
astonishing  is,  that  among  those  treaties  there  are  four  to 
which  France  is  a  party,  and  according  to  them,  even  enemy's 
goods  laden  on  board  of  neutral  vessels  are  not  liable  to  con- 
fiscation; much  less,  therefore,  ought  the  neutral  vessel  to  be 
confiscated,  on  board  of  which  they  are  shipped.  So  that  it 
must  be  said,  either  that  the  principle  of  the  old  French  law 
which  I  have  above  mentioned,  has  been  entirely  abandoned, 
or,  what  is  more  probable,  that  those  treaties  are  to  be  con- 
sidered as  exceptions  to  it.  However  this  may  be,  we  are 
bound,  in  the  discussion  of  general  principles,  to  attend  more  i 
to  reason  than  to  treaties.  And  on  rational  grounds,  I  cannot 
see  why  it  should  not  be  lawful  to  take  enemy's  goods,  al- 
though found  on  board  of  a  neutral  ship;  for  in  that  case,  what 
the  belligerent  takes  is  still  the  property  of  his  enemy,  and  by 
the  laws  of  war,  belongs  to  the  captor. 

It  will  be  said,  perhaps,  that  a  belligerent  may  not  lawfully 
take  his  enemy's  goods  on  board  of  a  neutral  vessel,  unless  he 
should  first  take  the  neutral  vessel  itself;  that  he  cannot  do  this 

& 

without  committing  an  act  of  violence  upon  his  friend,  in  order 
to  come  at  the  property  of  his  enemy,  and  that  it  is  quite  as 
unlawful  as  if  he  were  to  attack  that  enemy  in  a  neutral  port, 

I  ••- 

*  Vol.  4.  Consil  206.  n.  2. 

f  Above,  p.  103, 


110  TREATISE  ON  THE  LAW  OF  WAR. 

or  to  commit  depredations  in  the  territory  of  a  friend.*  But 
it  ought  to  be  observed,  that  it  is  lawful  to  detain  a  neutral 
vessel,  in  order  to  ascertain,  not  by  the  flag  merely,  which  may 
be  fraudulently  assumed,  but  by  the  documents  themselves 
which  are  on  board,  whether  she  is  really  neutral.  If  she  ap- 
pear tolje  such,  then  she  is  to  be  dismissed,  otherwise,  she 
may  be  captured.  And  if  this  is  lawful,  as  on  every  principle 
it  is,  and  as  it  is  generally  practised,  it  will  be  lawful  also  to 
examine  the  documents  which  concern  the  cargo,  and  from 
thence  to  learn,  whether  there  are  enemy's  -goods  concealed 
on  board,  and  if  any  should  be  found,  why  may  they  not 
be  captured  by  the  law  of  war?  The  Dutch  lawyers,  whose 
opinion  I  have  already  cited,f  and  the  Consoiato  del  Mare,  in 
the  chapter  above  referred  to,^:  are  equally  clear  upon  this 
point.  According  to  them,  the  neutral  ship  is  to  be  released; 
but  the  enemy's  goods  are  to  be  carried  into  a  port  of  the 
captor,  and  there  condemned.^ 

*  It  is  worthy  of  observation,  that  our  author,  while  lie  supports  the  bel- 
ligerent principle,  on  the  long  agitated  question,  whethei-yj-ee  ships  "  do  or 
do  not  make  free  goods,"  tacitly  admits,  that  neutral  vessels  are  entitled  to  be 
•  considered  as  neutral  territory,  a  proposition  which  Mr.  Hubner  thought  so 
self-evident,  that  he  did  not  think  it  worth  while  (though  he  professedly 
wrote  in  favour  of  the  neutral  doctrine)  to  devote  a  single  page  of  his  work 
to  its  proof  and  development.  Hubn.  de  la  Saisie  &c-  vol.  1.  p.  211.  This  prin- 
ciple being  admitted,  the  question  is  reduced  to  the  single  point:  "  Whe- 
ther the  right  of  taking  enemy's  property  on  board  of  neutral  vessels, 
r.ecessarlly  follows  as  a  consequence  of  the  right  of  search,  for  the  purpose 
of  ascertaining  their  neutral  character?"  On  this  point  alone,  the  whole  of 
our  author's  argument  turns,  and  he  maintains  the  affirmative;  but  like 
Hubner,  he  takes  his  proposition  for  granted,  without  taking  any  pains  to 
demonstrate  it.  On  the  whole,  he  must  be  considered  as  having  made  a 
very  important  concession  in  favour  of  neutrals,  and  having  greatly  nar- 
rowed for  them  the  field  of  that  celebrated  controversy.  T. 

f  Consil.  Belg.  ubi  supra. 

\  C.  273.  §  2.  of  Mr.  Robinson's  translation,  and  c.  276.  §  1004.  of  that  of 
M.  Boucher.  T. 

§  Above,  p.  104.  This  opinion  of  our  author  is  adopted,  as  we  have  shewn  be- 
fore, p.  105.  in  the  case  of  neutral  goods  found  on  board  of  an  enemy's  vessel; 
but  the  contrary  rule  universally  takes  place  in  the  case  of  enemy's  goods 
taken  on  board  of  a  neutral  ship,  in  which  case,  as  we  have  observed  above,  p. 
81,  the  owner  of  the  vessel  is  entitled  to  his  freight,  though  he  has  not 
Carried  the  goods  to  the  place  of  their  destination.  Sucli  is  the  opinion  of 


TREATISE  ON  THE  LAW  OF  WAR. 

Those  authorities  say  further,  that  the  captor  must  pay  the 
freight  to  the  master  of  the  vessel,  but  I  do  not  think  that 
opinion  reasonable,  because  freight  is  not  due,  unless  the 
goods  have  been  carried  to  their  port  of  destination.  It  may, 
indeed,  be  said,  and  with  great  truth,  that  it  was  not  the  fault 
of  the  master,  that  he  did  not  carry  them;  but  it  must  be  said 
also,  that  when  he  took  enemy's  goods  on  board  of  his  ship, 
he  did  it  at  his  own  peril,  as  he  must  have  known  that  they 
might  be  taken,  and  thus  be  carried  into  a  port  of  the  captor. 
Therefore,  he  has  no  cause  to  complain,  if  his  ship  be  merely 
dismissed  without  paying  him  any  freight;  unless  it  should  be 
agreed  between  him  and  the  captor,  that  he  should  carry  the 
enemy's  goods  to  the  place  of  their  destination,  and  thus  have 
hired  his  vessel  out  to  the  captor  himself.  I  have  argued  on  this 
same  principle  in  the  preceding  chapter,  but  in  a  case  directly 
opposite;  being  that  of  neutral  goods  and  an  enemy's  vessel.* 

I  shall  not  now  turn  to  the  particular  cases  in  which  this 
subject  has  been  discussed.  The  reader,  if  he  approves  of  the 
principles  which  I  have  laid  down,  will  be  able  to  form  a  cor- 
rect judgment  of  what  is  said  by  Albericus  Gentilis^  and 
Zouch^  on  the  same  question,  and  of  the  controversy,  which, 
as  the  latter  relates,  was  once  agitated  with  so  much  warmth 
between  the  English  and  the  Zealanders.^  Zouch,  himself,  is 

Vattel,  which  is  at  this  day  generally  considered  as  law."  Si  ran  trouve  sur 
un  vaisseau  neutre  des  effets  appurtenants  aux  ennemis,  on  s'en  saisit  par  le  droit 
de  la  guerre.-  mais  naturellement  on  doit  payer  le  fret  au  maitre  du  vaisseau, 
qtii  ne  peu  t  souffrir  de  cette  saisie.  If  on  board  of  a  neutral  vessel,  goods  are 
found  belonging  to  the  enemy,  they  are  seized  by  the  law  of  war:  but 
naturally,  the  freight  is  to  be  paid  to  the  master  of  the  vessel,  who  cannot 
sufferfrom  that  seizure."  Vatt.  L.  of  N.  1.  3.  c.  7.  §  115.  Such  is  also  the  rule 
in  England,  though  very  much  restricted,  and  rendered  almost  illusory  in 
practice.  The  Atlas,  3  Rob.  243.  Am.  edit,  in  not-  The  £mamielt  1  Rob.  249 
The  Rebecca,  2  Rob.  84.  The  Immanuel,  ibid.  172-  Am.  ed. 

The  reason  of  this  rule  is  very  plain,  enemy's  goods  are  not,  like  contra- 
band, seized  and  confiscated,  ex  delicto,  but  merely  ex  re;  for,  he  who  carries 
enemy's  property,  is  not  guilty  of  any  offence  against  the  law  of  nations,  as 
our  author  himself  has  ably  demonstrated,  above  p.  108.  T. 

Above,  p.  105. 

f  De  Advoc.  Hispan.  1.  1.  c.  28. $  De  Jure  Fee.  p.  2.  $  &  Q.  6. 

§  It  is  related  by  Zouch,  that  in  the  year  1576,  the  merchants  of  the 
Spanish  Netherlands,  bein$  in  the  habit  of  carrying  on  their  commerce  wit! 


112  TREATISE  ON  THE  LAW  OF  WAR. 

of  opinion,  that  the  neutral  vessel  ought  to  be  released,  and 
the  enemy's  goods  confiscated;  but,  he  thinks  that  freight 
ought  to  be  paid  to  the  master,  in  which  he  agrees  with  the 
Consolato  del  Marey  but  not  with  me.  He  is,  however,  for 
allowing  such  freight  only  pro  raid  itmeris  peracti.*  If  his 
doctrine  were  correct,  as  in  my  opinion  it  is  not,  it  would 
be  very  difficult  to  explain  this  restriction,  on  satisfactory 
principles.f 

After  writing  thus  much,  the  works  of  the  learned  He'inec- 
cius  have  come  to  my  hands,  arid  among  them  his  dissertation 
"  On  the  confiscation  of  ships  for  carrying  prohibited  goods  "\ 
in  which§  he  briefly  considers  the  two  questions  which  are 
the  subject  of  this  and  the  preceding  chapter.  The  perusal 
of  that  treatise  has  not  induced  me  in  the  least  to  alter  my 
opinion;  I  am,  on  the  contrary,  confirmed  in  it  by  the  authority 
of  so  great  a  man.  If  the  reader  will  take  the  trouble  to  com- 
pare what  has  been  said  by  each  of  us  on  the  same  subject,  he 
will  be  satisfied  of  the  reason  why  I  have  not  thought  it  neces- 
sary to  make  any  alteration  in  this  chapter,  or  in  that  which 
immediately  precedes  it. 

Spain,  then  at  war  with  the  United  Provinces,  under  cover  of  the  English  flag, 
the  privateers  of  Zealand  captured  several  English  vessels  engaged  in  that 
trade,  and  had  them  condemned  as  prize  in  their  court  of  admiralty.  He  adds, 
that  the  English  complained  of  it,  and  by  way  of  retaliation,  detained  the 
ships  of  the  Zealanders  which  they  found  in  the  ports  of  England,  and  im- 
prisoned their  commanders.  But  the  prince  of  Orange  prevailed  upon  the 
ijueen  to  accept  of  a  compromise,  by  which  the  property  taken  was  restored 
on  both  sides.  Zouch,  ubi  suprd.  T. 

*  In  proportion  to  the  voyage  performed.  T. 

\  We  have  shewn  in  former  notes,  p.  81. 110.  that  contrary  to  the  opinion  of 
our  author,  freight  is  generally  allowed  to  the  neutral  master  in  the  prize-- 
courts of  Europe.  And  it  is  not  only  paid  to  him,  as  Zouch  would  have  it, 
pro  ratd  itineris,  but  in  toto,  and  us  if  the  whole  voyage  had  been  performed. 
The  reason  given  for  it,  which  appears  founded  on  very  sound  principles, 
is,  "  that  the  captor  represents  his  enemy,  by  possessing  himself  of  his 
goods,  jure  belli;  and  that,  although  the  whole  freight  has  not  been  earned 
by  the  completion  of  the  voyage,  yet,  as  the  captor,  by  his  act  of  seizure, 
has  prevented  its  completion,  his  seizure  shall  operate  to  the  same  effect 
as  an  actual  delivery  of  the  goods  to  the  consignee,  and  shall  subject  him 
to  the  payment  of  the  full  freight."  The  Copenhagen,  1  Rob.245.  Amcr.  edit.  T 

4  De  navibus  ob  veeturam  vetitarum  mtrciimi  cvmrniasia. §  C.  ?.  §  9. 


TREATISE  ON  THE  LAW  OF  WAR.  113 


CHAPTER  XV. 

Of  the  Right  of  Postliminy  on  neutral  territory. 

TT  has  been  questioned  whether  this  right  extends  to  persons 
•*-  or  things,  which,  after  being  taken  by  an  enemy,  are 
carried  by  him  into  the  territory  of  a  neutral.  It  might  be 
supposed  that  this  question  is  settled  by  that  passage  from  the 
Digest,  in  which  Pomponius  says,  "  that  one  of  our  people  who 
has  been  taken  by  the  enemy,  is  understood  to  be  returned 
among  us,  if  he  arrives  among  our  friends  or  upon  our  ter- 
ritory;"* and  as  the  same  law  which,  on  the  subject  of  post- 
liminy,  applies  to  persons,  applies  also  to  things,  there  does 
not  appear  to  be  any  further  room  for  controversy;  for  it  seems, 
that  under  the  general  denomination  of  friends ,  Pomponius 
has  meant  to  include  neutrals,  who  are  certainly  entitled  to 
that  appellation.  But  Grotius  construes  it  in  a  different  man- 
ner;! ne  thinks,  and  in  my  opinion  justly,  that  by  the  word 
friends  are  not  generally  to  be  understood,  all  those  who  are 
at  peace  with  us,  but  only  those  who  are  engaged  with  us  in 
the  same  zvar.  He  gives  the  same  interpretation  to  what  is 
said  by  Paulus,  that  "  those  are  considered  as  having  returned 
to  us  by  right  of  postliminy,  not  only  who  have  actually  entered 
our  territory,  but  who  have  arrived  within  the  dominions  of  a 
friend  or  ally;  because  there  they  begin  to  be  under  the  safe- 
guard of  the  public  faith.":j: 

If  we  take  the  words  "  OR  an  ally"  conjunctively,  (which 
we  may,  perhaps,  do,  in  the  same  manner  that  we  frequently 
construe  a  conjunctive  into  a  disjunctive},  Paulus^s  opinion  will 
support  the  interpretation  of  Grotius;  for  an  ally  certainly 

*  fF.  de  Capt.  &  Postlim.  Revers.  1.  5.  §  1. 
t  De  J.  B.  ac  P.  1.  3.  c.  9.  §  2.  n.  1  and  2, 
\  ff.  vt  suprd,  1.  19.  §  3. 

IP 


114  TREATISE  ON  THE  LAW  OF  WAR. 

comes  within  the  description  of  the  word  friend.  If,  however, 
we  take  it  in  the  disjunctive  sense,  it  will  be  sufficient  that  it 
be  a  neutral  or  friendly \  though  not  an  allied  nation.  Of  this 
opinion  is  Albericus  Gentilis;*  but  he  is  clearly  in  the  wrong; 
because  the  reason  which  Paulus  gives,  that  the  person  who 
was  taken  begins,  when  on  a  friend's  territory,  to  be  under  the 
safeguard  of  the  public  faith,  applies  as  well  and  rather  more 
to  an  ally  than  to  a  mere  friend. 

Of  the  same  opinion  with  Grotius,  and  before  him,  was 
Antonio  de  Gama,^  whom  Gentilis  on  that  account  undertook 
to  refute.  Zouch,\  according  to  his  custom,  contents  himself 
with  relating  the  different  opinions  of  others,  and  gives  none 
himself,  though  he  rather  appears  to  incline  to  that  of  Gentiiis. 
As  to  Grotius,  he  supports  what  he  says  merely  by  the  au- 
thority of  precedents,  without  adding  a  single  argument  of  his 
own.  "  Among  those,"  says  he,  "  who  are  friends,  but  not 
allies,  prisoners  of  war  do  not  change  their  condition,  unless 
it  be  so  specially  agreed  by  treaty,"  and  by  way  of  example, 
he  immediately  quotes  the  second  treaty  between  the  Cartha- 
ginians and  Romans;^  but  Zouch  very  properly  observes, 
that  it  does  not  sufficiently  appear  whether  what  the  two 
nations  agreed  upon  together  is  to  be  considered  as  a  de- 
claration of  the  law  of  nations,  or  as  an  exception  to  it.  In 
various  treaties,  among  the  most  ancient  as  well  as  the  most 
modern,  this  is  a  question  which  it  is  often  difficult  to  decide; 
and  it  is  always  dangerous  to  infer  the  law  of  nations  merely 
from  treaties,  without  also  consulting  reason.  Grotius  adds,  in 
his  notes,  that  it  appears  from  Thuanus,  that  the  king  of  Fez 
and  Morocco  was  of  the  same  opinion  with  him;  but  no  one 
will  be  willing  to  be  instructed  by  such  masters  in  the  law  of 
nations. 

*  De  Advoc.  Hisp.  1.  1.  c.  1. 

f  Decisiones  Lusitanicie,  384. 

\  De  Jure  Fee.  p.  2.  §  8.  Q.  2. 

§  It  was  stipulated  by  that  treaty,  that  if  the  prisoners  made  by  the 
Carthaginians  on  some  nation  in  friendship  with  the  Romans,  should  come 
into  the  countries  under  the  Human  dominion,  they  might  be  reclaimed, 
and  should  again  become  free;  and  that  the  friends  of  the  Carthaginians 
should  have  the  same  right  within  the  Punic  dominions.  Grot-  ubi  supra. 


TREATISE  ON  THE  LAW  OF  WAR.  H5 

As  to  other  writers,  Huberus*  is  of  the  same  opinion  with 
Grotius,  when  he  understands  by  the  word  returned,  one  who 
is  come  back  into  the  territory  of  an  ally.  Hertius\  agrees 
also  with  him,  and  considers  the  right  of  postliminy  as  not 
being  founded  on  the  law  of  nations,  but  on  municipal  law. 
He  decides  on  the  question  so  often  discussed  among  nations, 
"  whether  a  prisoner  of  war,  or  captured  property,  which  is 
brought  into  a  neutral  country,  are  entitled  to  their  liberty  by 
the  right  of  postliminy?"  He  maintains  that  they  are  not; 
"  because,"  says  he,  "  neutrals  are  bound  'to  take  the  fact  for 
the  law?  and  therefore  cannot  say  that  the  capture  was  illegally 
made.":}: 

But,  indeed,  if  we  chuse  to  consider  this  subject  by  the 
mere  light  of  reason,  this  question  appears  to  me  so  idle,  that 
I  wonder  that  it  has  exercised  the  minds  of  so  many  writers. 
He  who  returns  among  the  allies  of  his  sovereign,  is  entitled 
to  the  right  of  postliminy,  because  he  is  considered  as  having 
returned  to  his  own  country,  for  allies  are  considered  as 
making  but  one  state  with  ourselves.  §  Certainly  they  are  not 
to  be  considered  as  separate  nations  in  respect  to  the  war  in 
which  they  unite  their  forces  and  mutual  assistance.  There- 
fore, by  the  word  friends,  which  Pomponius\\  makes  use 
of,  I  would  understand  those  who  are  such  in  the  highest 
degree,  that  is  to  say,  who  are  in  alliance  with  us  against  the 
same  enemy;  and  by  Paulus's  expression,^}  "  a.  friend  or 


*  De  Jure  Civilatis,  1.  3.  §  4.  c.  5.  n.  11. 

f  Adnot.  ad  Puflend.  De  Jure  N.  and  G.  1.  &  c.  6.  n.  25. 

\  Such  is  also  the  opinion  of  all  the  modern  writers,  and  particularly  of 
Vattel.  Le  droit  de  postliminie  n'a  point  lieu  chez  les  peupks  neutres;  car  quiconque 
<veut  demeurer  neutre  dans  une  guerre  est  oblige  de  la  consldtrer  quant  a  ses 
ejfcts,  comme  tgalement  juste  de  part  &  d'autre,  Cf  par  consequent  de  regarder 
comme  bien  acquis  tout  ce  qui  est  pris  par  I'un  ou  I'autre  parti.  The  right  of 
postliminy  does  not  take  place  among  neutral  nations;  for  whoever  will  re- 
main neutntl  in  a  war,  is  obliged  to  look  upon  it,  as  to  its  effects,  as  being 
equally  just  on  both  sides,  and  consequently  to  consider  as  a  lawful 
acquisition  whatever  is  captured  by  either  party.  Law  of  Nat.  1.  3.  c. 
14.  §  208. 

§  Unam  constituunt  Civitatem-  See  the  Her.rlck  and  Maiia,  4  Rob.  49. 
Ajner.  edit.  T, 

||  Above,  p.  113.  -  U  Ibid, 


116          TREATISE  ON  THE  LAW  OF  WAR. 

I  would  understand  him,  who  is  at  the  same  time  in  friend- 
ship and  in  alliance  with  us;  for  otherwise,  it  would  have 
been  sufficient  to  have  made  use  of  the  word  friend.*  With 
such  alone,  because  of  the  alliance,  the  right  of  postliminy 

*  The  doctrine  of  postliminy,  among  the  ancient  Romans,  applied  prin- 
cipally to  persons,  it  being  the  practice  at  the  time  when  that  country 
flourished,  to  make  slaves  of  prisoners  taken  in  war.  To  such,  Pomponius 
and  Paulus  particularly  meant  to  apply  their  principles  on  this  subject,  and 
therefore,  it  is  not  easy  to  refer  them  to  the  case  of  ships  and  goods  taken 
at  sea  in  a  modern  maritime  war.  Nor  does  it  sufficiently  appear  whether 
those  authors  meant  to  speak  of  prisoners  who  made  their  escape  into  a 
friendly  or  allied  country,  as  well  as  of  those  who  came  thither  in  the  pos- 
session of  their  masters  who  had  purchased  them  from  the  captors.  It  is 
possible,  that  a  different  rule  might  have  obtained  in  each  of  these  different 
cases.  The  civilians  take  too  much  pains  to  apply  the  principles  of  the 
Roman  law  to  every  case  that  presents  itself;  not  considering,  that  the  dif- 
ference between  ancient  and  modern  manners  renders  them,  in  many 
instances,  little  susceptible  of  a  direct  application. 

There  would  be,  in  our  opinion,  little  difficulty  in  settling  this  question 
of  postliminy  on  neutral  territory,  if  a  proper  attention  were  paid  to  the 
distinction  which  the  law  has  established  between  military  and  civil 
rights.  We  call  military  rights  those  which  belligerents  acquire  in  war, 
by  capture  or  conquest,  to  the  property  of  their  enemies,  and  civil  rights, 
those  which  are  acquired  out  of  war  by  contract  or  otherwise.  These  dif- 
ferent rights  receive  a  different  kind  of  proof.  Military  rights  are  evidenced 
by  possession,  and  civil  rights  by  the  ordinary  proofs  of  title.  A  prize,  there- 
fore, which  is  brought  into  a  neutral  territory,  in  the  possession  of  the  captors 
or  of  their  agents,  does  not  return  to  its  former  owner,  by  the  law  of 
postliminy,  because  neutrals  are  bound  to  take  notice  of  the  military  right 
which  the  possession  evidences.  But  they  are  not  bound  to  receive  any 
other  proof  of  it  than  the  possession  itself;  for  with  the  mere  -right  of 
property  of  the  captor  they  have  nothing  to  do;  the  right  of  possession  is  the 
only  thing  that  they  cannot  controvert,  and  in  that,  as  Hertius  says,  they 
are  bound  to  take  the  fact  for  the  lavs.  If,  therefore,  a  vessel,  after  cap- 
ture, should  escape,  or  be  brought  into  a  neutral  territory  by  others 
than  the  captor,  his  agents,  or  those  who  otherwise  lawfully  claim  under 
him,  as  there  is  no  longer  any  legal  evidence  of  the  military  right,  no  fact 
which  is  to  be  taken  for  lav:,  the  civil  right  of  the  former  owner  revives, 
and  the  property  returns  to  him  by  the  law  of  postliminy.  We  do  not  mean 
to  speak  here  of  property  regularly  condemned  in  the  tribunals  of  the 
captor;  such  a  condemnation  converts  the  military  into  a  cm/  right,  of 
which  the  sentence  is  the  legal  evidence. 

For  want  of  attending  to  these  distinctions,  the  broad  and  unqualified 
propositions  of  our  author  have  led  many  into  an  error.  7*. 


TREATISE  ON  THE  LAW  OF  WAR.  H7 

takes  place,  but  with  those  who  are  merely  friends  to  both 
parties,  the  state  or  condition  of  our  citizens,  or  of  our 
property,  does  not  change,  because  there  is  no  reason  for  it. 
Wherefore,  I  wonder  that  Gentilis  and  others  have  been  of 
opinion,  that  every  thing  which  is  brought  into  the  dominions 
of  a  neutral  country,  returns  by  postliminy,  and  as  a  conse- 
quence thereof,  that  prisoners  carried  into  the  territory  of  a 
friend,  become  free.* 

This  doctrine,  as  to  prisoners,  is  roundly  asserted  by 
Joannes  de  Immolarf  and  Petrinus  Bellw,\  with  whom  Zouch 
appears  to  concur  in  sentiment.^  But  the  contrary  is  so  plain, 
that  even  sceptics  hare  never  seriously  entertained  a  doubt  of 
it;  for  all  unanimously  agree,  that  a  right  of  property  is  ac- 
quired by  capture  in  war,  and  that  that  right  continues  in  the 
country  of  a  friend.  And  if  it  be  true,  that  the  prizes  which 
I  have  taken,  and  the  prisoners  that  I  have  made,  remain  my 
property,  by  what  right  shall  a  prince,  who  is  my  friend,  take 
from  me  those  things  which  belong  to  me,  plena  jure,  and  give 

*  By  the  law  of  nations,  as  at  present  understood,  the  right  of  postliminy 
takes  place  with  respect  to  persons,  even  in  a  neutral  country.  For  the  mo- 
ment that  a  prisoner  sets  his  foot  on  neutral  territory,  no  force  whatever  of 
the  belligerent  can  protect  him.  "  A  privateer,"  says  Vattel,  "  carries  his 
prize  into  a  neutral  port,  and  there  freely  sells  it;  but  he  would  not  be 
allowed  to  put  his  prisoners  ashore,  in  order  to  confine  them;  for  to  Jeep  or 
detain  prisoners  of  war,  in  order  to  confine  them,  is  a  continuation  nf  hostilities." 
Law  of  Nat.  1.  3.  c.  7.  §  132.  True,  the  captor  may  confine  them  on  board 
of  his  ship,  even  though  in  the  neutral's  port,  or  within  his  jurisdiction; 
because  a  ship  is  considered  as  it  were  a  part  of  the  territory  of  the 
sovereign  to  whom  it  belongs.  (See  above,  p.  109,  110.),  but  beyond  that, 
no  force  can  lawfully  be  exercised  by  a  belligerent  on  persons  in  a  neutral 
country. 

If,  however,  a  passage  should  be  granted  to  a  body  of  land  troops  through 
a  neutral  territory,  there  is  no  doubt  that  they  might  keep  under  confine- 
ment the  prisoners  that  they  had  with  them.  For  this  power  would  be 
incident  to  the  right  of  passage,  which  otherwise  would  not  be  effectually 
granted.  And  an  army  (as  well  as  a  fleet)  is  considered,  wherever  it  may 
be,  in  many  respects,  as  a  presidium  of  the  nation  to  whom  it  belongs.  See 
above,  p.  29.  T 

f  Consil.  50. 

4  De  Re  Militari,  p.  2.  tit.  18.  n.  1?. 

§  De  Jure  Fee.  p.  2.  $  9.  Q;  8. 


118  TREATISE  ON  THE  LAW  OF  WAR. 

them  up  to  another,  though  he  be  equally  his  friend?  It  is  suf- 
ficiently clear,  that  he  cannot  do  it  without  injuring  me.  Nor 
can  he  do  it  by  his  courts  of  justice,  for  he  cannot  lawfully 
judge  between  me  and  my  enemy,  without  the  agreement  of 
both.*  As  therefore,  what  is  taken  in  war  remains  the  pro- 
perty of  the  captor,  though  in  a  neutral  country,  the  Swedish 
ambassador  was  wrong,  when,  in  the  year  1657,  he  claimed 
certain  letters  of  his,  which  had  been  intercepted  by  the  Danes, 
with  whom  his  sovereign  was  at  war,  and  delivered  to  the 
states-general,  who  were  his  friends;  contending  that,  by  that 
delivery  they  had  again  become  his  own.f 

Treaties,  however,  are  sometimes  made  between  sovereigns 
on  a  different  principle,  as  was  the  case  formerly  between  the 
Romans  and  Carthaginians,  by  the  second  treaty  which  Grotius 
quotes  from  Polybius.  And  thus,  by  the  20th  article  of  the 
treaty  of  peace  between  the  king  of  Portugal  and  the  states- 
general  of  the  6th  of  August  1661,  it  was  stipulated^  that 
"  what  should  be  taken  by  the  enemy  of  either,  and  carried 
into  the  port  of  the  other,  if  demanded  within  a  certain  time, 
should  be  restored."  But  such  conventions  cannot  be  made 
without  injury  to  him  who  carries  his  prizes  into  the  territory 
of  his  friend  as  into  a  safe  place.  Therefore,  they  effect  no 
change  in  the  principles  of  reason,  or  of  the  law  of  nations. 
For  more  upon  this  subject,  see  Cunceus's  dissertation  DC 
Causa  Postliminii,  and  Loccenius,  De  Jure  Maritimo,\  where 
the  arguments  of  Cunceus  are  briefly  stated.  II 

*  As  between  the  belligerents,  the  neutral  is  bound  to  see  right  wherever 
he  sees  possession:  of  a  right  unaccompanied  witli  possession,  he  cannot 
take  notice.  We  mean  to  speak  only  of  rights  acquired  by  or  founded  on 
the  law  of  war,  for  of  other  rights  he  may  judge  as  if  no  war  existed.  T. 

f  Aitz.  1.  37.  Because  the  possession  of  the  captor  continued  in  the 
hands  of  his  donee;  and  because  such  things  as  letters  and  the  like,  when 
taken  in  war,  do  not  require  a  sentence  of  condemnation  to  divest  the  right 
of  property  of  the  first  owner.  Statim  capientium  funt.  T. 

\  L.  2.  c.  4.  n.  6.  10. 

||  Ut  enim  victor  intrd  propria  prxsidia  tutus  est,  ita  si  amid  Jidem  elegerit, 
&  in  sua  prxsidia  se  et  sua  contultrit,  etiam  illic  publico  nomine  tutus  est. — 
Serum  est  atque  inutile,  hostem  tentare  in  aiieno  ttrritorio  vi  suum  alteri 
ni/iniere;  out  cum  communi  amico  agere,  ut  sibi  restituat,  Nihil  enim  hostile  aut 


TREATISE  ON  THE  LAW  OF  WAR.  119 

This,  however,  is  true  only  as  to  captures  made  in  a  just 
war,  for  if  any  thing  has  been  taken  by  pirates,  it  is  by  all 
means  to  be  restored  to  the  former  owners;  and  so  it  has  been 
stipulated  in  various  treaties  between  different  nations.*  And 
it  is  a  rule  generally  adopted  among  all  the  nations  of  Europe, 
that  a  capture  by  pirates  does  not  change  the  property,  which 
subject  has  been  treated  more  at  large  by  others,  as  I  shall 
shew  hereafter.f 

Agreeably  to  these  principles,  if  my  property,  captured  by 
enemies,  comes  into  the  territory  of  an  ally,  it  returns  to  my 
use,  and  hence  it  is  considered  as  if  it  had  been  delivered  by 
my  ally  from  the  common  enemy.  And  yet,  the  French  in  a 
similar  case,  formerly  acted  on  a  different  principle,  in  con- 
sequence of  which,  the  states-general,  on  the  4th  and  5th  of 
December  1637,  decreed,  that  the  same  should  be  done  with 
respect  to  them4  § 

violcntum  vet  ipse  molietur,  <cel  alterum  agitare  in  suos  fines  contra  alterum 
patietur,  quern  FIDE  PUBLICA  in  portum  suum  admisit.  The  same  safety 
that  the  conqueror  finds  in  his  own  fortresses,  he  will  find  in  the  dominions 
of  his  friend;  if  reiving  upon  his  honour,  he  has  put  himself  and  what  be- 
longs to  him  into  his  power,  the  public  faith  will  protect  him  there.  In  vain 
shall  his  enemy  endeavour  to  retake  by  force  what  was  taken  from  him,  or 
to  prevail  upon  the  neutral  sovereign  to  restore  it  to  him.  The  neutral 
sovereign  will  not  commit  an  act  of  hostility  against  his  friend,  whom 
he  has  admitted  into  his  country  under  the  protection  of  the  public  faith; 
nor  will  he  suffer  any  other  person  to  hurt  him  within  his  territory. 
Loccen.  ubi  supra,  in  Scriptor.  de  jfure  Nautico  £3*  Marit.  Fascicul.  vol.  ii.  p. 
976.  We  have  thought  that  our  readers  would  not  be  displeased  with  our 
transcribing  this  beautiful  passage  out  of  the  writings  of  one  of  those 
Northern  professors,  against  whom  sir  James  Marriott  has  so  unjustly  and  so 
illiberally  vented  his  spleen.  Vide  hit  decree  in  the  case  of  the  ship  Columbus, 
in  the  first  volume  of  Collectanea  Juridica-  T. 

*  Treaty  between  the  emperor  of  Morocco  and  the  states-general,  of  the 
24th  of  September  1610,  art.  4. — Treaty  of  peace  between  the  United  Pro- 
vinces and  Portugal,  of  the  6th  of  August  1661,  art.  20. — Treaty  of  commerce 

between  France  and  the  states-general,  of  the  27th  of  April  1662,  art.  45 

Treaty  of  peace  between  England  and  the  states-general,  of  the  14th  of 
September  1662,  art.  11. 

f  Post,  c.  17. 

|  Aitz.  1.  21.  24. 

§  Aitzema  relates,  that  France  being  in  alliance  with  Holland,  and  both 
being  at  war  \vith  Spain,  the  French  had  refused  to  restore  to  the  Dutch 


120  TREATISE  ON  THE  LAW  OF  WAR. 

It  is  more  doubtful,  whether  a  captor  may  in  a  neutral 
territory,  sell  the  thing  which  he  has  taken  from  his  enemy, 
and  recover  the  price  of  the  sale?  By  the  12th  article  of  the 
treaty  of  peace  between  the  United  Provinces  and  England, 
of  the  4th  of  September  1662,  it  was  provided,  that  in  such  a 
case,  if  the  consideration  of  the  sale  had  not  been  paid  to  the 
captor,  the  property  should  return  to  its  former  owner,  which 
article,  in  a  particular  case,  that  happened  afterwards,  the 
states-general  ordered  to  be  carried  into  execution.*  But  I 
would  wish  to  know  on  what  principle  this  stipulation  was 
founded?  And  how,  if  the  sale  of  the  prize  by  the  captor  is 
lawful,  his  enemy  can  be  made  to  derive  an  advantage  from 
it?  It  will  be  difficult  to  account  satisfactorily  for  this;  for 
it  is  an  established  principle,  that  we  may  lawfully  assist 
our  friends,  although  enemies  to  each  other,  provided  we  do 
not  supply  them  with  implements  of  war,  and  do  not  shew 
more  favour  to  one  than  to  the  other.  It  cannot,  therefore,  be 
required,  that  we  should  shut  our  ports  against  them,  or  pro- 
hibit all  commercial  intercourse  between  them  and  our  citi- 
zens. I  am  of  opinion,  that  this  12th  article  is  to  be  classed 
among  special  treaties,  the  reason  of  which  is  often  concealed 
from  usj  for  in  general,  we  are  free  to  exercise  the  rights  of 

their  property  which  they  had  recaptured  from  the  Spanish  privateers; 
whereupon,  the  Dutch,  by  way  of  retaliation,  issued  the  edict  which  our 
author  mentions,  by  which  they  ordered  that  no  part  of  the  French  properly 
which  their  vessels  of  war  should  retake  from  the  Spaniards  should  be  re- 
stored to  the  French,  until  they  should  pursue  a  different  line  of  conduct 
with  respect  to  them.  2  Aitz.  p.  752.  fol.  ed.  T. 

*  Aitz.  1.  44.  It  is  difficult  to  understand  how  prohibiting  the  sale  of 
prizes  in  a  neutral  country  is  tantamount  with  interdicting  all  trade  with 
the  country  of  the  captors;  but  this  strong  language  of  our  author,  shews 
how  much  he  was  in  favour  of  the  right  of  the  belligerents  to  sell  their 
prizes  in  neutral  countries;  and  that  this  right  exists,  is  not  only  the  opinion 
of  Bynkershoek,  but  of  almost  all  the  writers  on  the  law  of  nations,  and  par- 
ticularly of  Vattel  in  the  passage  last  above  cited.  The  same  right,  however, 
should  be  granted  to  both  parties  alike,  otherwise,  the  one  to  whom  it  is 
refused,  will  have  a  just  right  to  complain.  But  neutral  governments 
generally  find  it  inconvenient  to  permit  the  privateers  of  contending  nations 
to  frequent  their  ports  with  their  prizes  at  the  same  time,  and  therefore 
the  right  is  either  only  granted  to  one  of  the  parties,  by  virtue  of  a  special 
treaty,  or  denied  to  both.  T.' 


TREATISE  ON  THE  LAW  OF  WAR.  121 

ownership  over  our  property  in  a  neutral  country,  whether 
we  have  acquired  it  by  the  law  of  nations,  or  by  the  municipal 
law. 

Although  it  be  lawful,  on  rational  principles,  to  carry  a 
prize  into  a  neutral  territory,  and  there  to  sell  it  if  the  captor 
thinks  proper,  laws  have,  nevertheless,  more  than  once,  been 
made  to  the  contrary.  The  states-general,  on  the  9th  of  August 
1658,  issued  an  edict,  by  which  they  ordered,  that  no  foreign 
captor  who  might  be  compelled  by  stress  of  weather,  or  some 
other  reasonable  cause,  to  bring  his  prize  into  the  ports  of  this 
country,  should  presume  to  sell  any  part  of  it,  or  even  to  break 
bulk,  but  that  he  should  inform  the  bailiff  of  the  place  of  his 
arrival,  who,  having  placed  a  guard  on  board  of  the  ship, 
should  keep  a  strict  watch  over  her,  until  her  departure,  in- 
flicting, moreover,  a  discretionary  penalty,  and  a  fine  of  one 
thousand  florins,  on  any  one  that  should  assist  in  unlading, 
or  purchase  any  thing  out  of  her.  To  which  edict,  the  said 
states-general,  on  the  7th  of  November  in  the  same  year, 
enacted  a  supplement,  by  which  it  was  ordered  that  no  prize- 
ship  should  be  brought  into  the  port  itself,  but  merely  into  the 
outer  roads,  where  she  might  be  sheltered  from  danger,  and 
that  nothing  should  be  unladen  or  sold  out  of  her;  and  if  any 
one  should  act  to  the  contrary,  the  prize  should  be  restored  to 
the  former  owner,  as  though  it  had  never  been  taken,  and  the 
captor  himself  should  be  detained,  and  his  own  vessel  seized 
and  confiscated.  The  remainder  of  the  edict  merely  confirms 
that  of  the  ninth  of  August  above  mentioned.  Whether  those 
edicts  were  extorted  from  the  states-general,  by  fear  or  by 
any  other  cause,  I  do  not  know;  but  lest  they  should  hereafter 
militate  against  rational  principles,  we  must  declare  that  we 
rather  believe  them  to  have  been  temporary  than  perpetual 
laws. 


122  TREATISE  ON  THE  LAW  OF  WAR. 


CHAPTER  XVI. 

Of  the  Right  of  Postliminy  as  applied  to  cities  and  states.* 

T  T  has  been  very  properly  said  by  Grotius,\  that  "  the  right 
-•-  of  postliminy  is  applicable  to  a  -whole  people,  as  well  as  to 
an  individual,  and  that  a  political  body,  which  was  free  before, 
recovers  its  freedom  when  its  allies,  by  force  of  arms,  deliver 
it  from  the  yoke  of  the  enemy."  Hotoman  is  of  the  same 
opinion,  but  there  is  some  doubt  whether  this  principle  has 
been  always  and  every  where  observed  in  the  United  Nether- 
lands. In  the  case  of  Groningen,  there  is  no  doubt  that  it  was 
attended  to,  as  that  city  and  province  was  admitted  into  the 
confederation,  after  we  had  reconquered  it  from  the  Spaniards, 
though  it  is  to  this  day  doubtful,  whether  they  had  ever  before 
formally  signed  the  articles  of  Utrecht,  and  they  had  certainly 
renounced  them  while  under  the  Spanish  dominion.  Those 
articles  had,  however,  been  signed  by  the  district  of  Ommelan- 
den,  which  constitutes  much  the  largest  part  of  that  province. 
The  inhabitants  of  the  district  of  Drenthe  were,  on  the  1 1th 
of  April  1580,  admitted  into  the  confederation  of  Utrecht,  but 
their  country  was  afterwards  invaded  and  occupied  by  the 
Spaniards.  After  the  enemy  had  withdrawn  and  evacuated 
their  territory,  it  seems  clear,  that  they  had  recovered  all  their 
former  rights,  by  virtue  of  the  law  of  postliminy.  Neverthe- 
less, although  they  several  times  petitioned  the  states-general, 
to  be  readmitted  into  the  union,  no  order  has  yet  been  taken 
upon  any  of  their  petitions;  and  once,  in  the  year  1650,  when, 
after  having  received  a  summons,  which,  it  is  said,  the  presi- 

*  We  liave  taken  the  liberty  to  abridge  several  parts  of  this  chapter, 
which,  in  the  original  contains  a  variety  of  details,  altogether  uninteresting 
to  us,  and  which  do  not  at  all  elucidate  the  author's  principles. 

t  De  J.  B.  ac  P.I  3.  c.9.$9.n.  1 


TREATISE  ON  THE  LAW  OF  WAR.  123 

dent  of  the  states-general  had  signed  by  mistake,  their  de- 
puties attended  at  a  meeting  of  the  states,  they  were  refused 
admittance.  This  certainly  appears  to  be  an  act  of  injustice, 
particularly  as  neither  the  states-general  nor  the  provincial 
states*  have  ever  given  any  reason  for  their  refusal  to  admit 
them,  in  which  they  persist  to  this  day.  It  may,  perhaps,  be 
alleged,  that  the  Drenthers  did  not  renounce  their  allegiance 
to  the  king  of  Spain,  as  the  other  confederates  did  on  the  26th 
of  July  1581;  consequently,  that  they  remained  under  the 
dominion  of  the  Spaniards,  and  are  to  be  treated  as  a  con- 
quered country.  But  I  would  not  exclude  them  on  that 
account,  as  I  am  not  clear  that  they  forfeited  the  privileges  of 
the  Dutch  union,  merely  because  they  did  not  renounce  the 
king  of  Spain,  nor  do  I  find  that  this  has  ever  been  objected 
to  them.  Therefore,  I  see  no  reason  why  the  Drenthers 
should  not  enjoy  the  benefit  of  the  law  of  postliminy.\ 

The  inhabitants  of  those  parts  of  Brabant,  which  were 
under  the  dominion  of  the  king  of  Spain,  but  were  afterwards 
taken  by  the  United  Dutch,\  also  petitioned  the  states-general, 
in  1648,  to  be  admitted  into  the  confederation  of  Utrecht;  but 
they  were  not  even  permitted  to  manage  their  own  internal 
government.  Some  of  the  provincial  states,  however,  gave 
power  to  their  delegates  to  decide  upon  that  business,  but 
nothing  was  done  in  it.  The  Brabanters  again  petitioned  on 
the  22d  of  March  1651,  but  to  no  purpose.  Their  case  does 
not  appear  to  come  properly  within  the  principle  of  the  law  of 
postliminy,  for  none  of  their  cities,  except  Breda,  had  ever 
been  admitted  into  the  confederation  of  Utrecht.  But  as  to 
the  inhabitants  of  Breda,  I  entertain  the  same  opinion  which 
I  have  already  expressed  with  regard  to  those  of  the  district 
of  Drenthe. 

*  Of  Over-Yssely  within  which  the  territory  of  Drenthe  was  included.     71 
f  They  were   not,  however,  admitted  to  that  benefit,  and  they  were 
still  a  dependent  territory  at  the  time  of  the  invasion  of  Holland  by  the 
French.  T. 

|  The  districts  of  Maesland,  Kuyck,  and  Kempenland,  with  the  cities  of 
Boisleduc,  Breda,  Bergen-op-Zoom  and  their  territories,  which  constituted 
what  was  formerly  called  Hutch  Brabant,  T. 


124  TREATISE  ON  THE  LAW  OF  WAR. 

The  case  of  Gitelderland,  Utrecht,  and  Over-Yssel,  three  out 
of  the  seven  united  provinces,  comes  much  more  properly 
within  the  law  of  postliminy.  In  the  year  1672,  they  were 
taken  by  the  French,*  and  afterwards  recovered  by  us.  While 
they  were  in  the  power  of  the  enemy,  they  certainly  were  not 
entitled  to  their  former  rights  as  confederates,  and  on  that  ac- 
count their  delegates  were  very  properly  ordered  not  to  attend 
any  longer  at  the  meetings  of  the  states-general;  but  when 
those  provinces  again  came  into  our  possession,  they  were 
with  equal  propriety,  considered  as  being  restored  to  their 
former  rights,  by  virtue  of  the  law  of  postliminy.  Indeed,  the 
states-general  decreed,  on  the  20th  of  April  1674,  that  those 
provinces  should  be  restored  to  their  former  municipal  and 
confederate  rights,  as  they  enjoyed  them  before  their  capture, 
except,  howevei*,  that  they  deprived  Guelderland  of  one  vote  in 
the  assembly  of  the  states,  and  several  other  conditions  were, 
in  fact,  imposed  upon  them  before  they  were  readmittted  into 
the  union;  for,  they  were  informed,  that  they  should  swear 
anew  to  the  articles  of  confederation,  as  if  they  were  admitted 
for  the  first  time.  But  if,  by  the  operation  of  the  law  of  post- 
liminy, every  thing  is  to  be  restored  as  if  the  captivity  had  not 
taken  place,  as  it  is  ever}'  where  understood,  and  is  con- 
formable to  the  usage  of  nations,  every  thing  ought  to  have 
been  restored  to  those  provinces,  Which  they  possessed  before 
their  capture.  They  were,  in  my  opinion,  fully  entitled  to  the 
benefit  of  the  law  of  postliminy,  and  if  so,  why  was  a  part  oi 
their  rights  retained?  If,  on  the  contrary,  they  were  not,  why 
was  any  thing  granted  to  them? 

It  has  been  objected,  I  know,  that  the  decrees  of  the  states- 
general,  on  the  subject  of  postliminy,  speak  of  our  subjects 
only,  and  that  no  mention  is  made  in  them  of  our  allies  and 
confederates;  but  that  was  not  the  question  at  the  time  when 
those  decrees  were  made.  Nay,  even  if  the  point  were  to  be 
decided  by  those  decrees,  those  should  certainly  be  considered 
as  subjects  of  this  state  or  republic,  who  constitute  so  large  a 
part  of  it.  Others  are  more  properly  of  opinion,  that  on  the 
subject  of  postliminy,  there  ought  to  be  no  difference  between 


TREATISE  ON  THE  LAW  OF  WAR.  125 

ourselves  and  our  allies  and  confederates.  Hence  the  decree 
of  the  states -general,  of  the  23d  of  October  1676,  which  I  have 
mentioned  above,*  grants  the  benefit  of  that  law,  not  only  to 
those  things  which  have  been  taken  on  board  of  our  vessels, 
and  afterwards  recaptured,  but  also  to  those  which  are  taken 
by  the  enemy,  on  board  of  the  vessels  of  allies  and  of  neutrals, 
and  afterwards  recaptured  by  us.  I  have  also  herein  before 
shewn,  that  such  was  formerly  the  doctrine  adopted  by  the 
states-general,  and  that  they  blamed  the  French  for  having 
followed  a  different  principle.! 

While  the  kingdom  of  Portugal  was  in  the  possession  of 
the  Spaniards,  with  whom  we  were  at  war,  the  states-general 
' onquered  a  considerable  part  of  the  colony  of  Brazil,  and 
several  others  of  the  Portuguese  dominions  in  different  parts 
of  the  world.  After  Portugal  had  recovered  her  independence, 
a  truce  of  ten  years  was  signed  between  that  country  and  the 
states-general,  in  16404  But  our  government  would  not  per- 
mit that  the  Portuguese  should  claim  by  virtue  of  the  law  of 
postliminy,  any  part  of  the  dominions  which  once  had  be- 
longed to  them,  and  which  we  had  taken  from  the  Spaniards. 
In  1657,  the  truce  being  expired,  but  before  any  notice  given 
of  the  renewal  of  hostilities,  the  Portuguese  retook  some  of 
those  places,  and  on  the  states-general  complaining  of  it,  they 
refused  to  restore  them,  but  offered  to  pay  a  sum  of  money  by 
way  of  compensation,  which  our  government  not  being  dis- 
posed to  accept,  they  declared  war  against  Portugal,  on  the 
22d  of  October  1657.  At  last  this  controversy  was  settled  by 
the  treaty  of  peace  which  was  made  on  the  6th  of  August 
1661. 

The  Portuguese  were  undoubtedly  in  the  right,  to  claim  the 
dominions  which  the  states -general  had  taken  from  them,  be- 

*  c.  5. f  Above,  p.  119. 

\  Shortly  after  the  restoration  of  the  house  of  Braganza  to  the  throne  of 
Portugal,  the  states -general  made  a  treaty  of  alliance  with  that  kingdom 
against  Spain,  notwithstanding  which  the  two  allies  remained  at  war  with 
each  other,  and  although  they  united  their  forces  against  the  common 
enemy,  their  mutual  hostilities  were  only  suspended  by  a  truce  often  years, 
which  was  not  very  religiously  observed.  Cerisier,  Hist.  Gen.  d'.'s  Prov.  Un. 
vol.  vi.  p.  143.—  Raynal,  Hirt.  Phiios.  &  Polit.  1.  9. 


126  TREATISE  ON  THE  LAW  OF  WAR. 

cause  the  states  themselves  asserted,  that  the  kingdom  of 
Portugal  did  not  belong  to  Spain.  In  addition  to  this,  the 
Portuguese  had  been  in  alliance  with  the  states-general  in  the 
war  against  Spain,  so  that  the  places  belonging  to  them  which 
had  come  into  the  possession  of  the  Dutch,  their  allies,  were 
clearly  to  return  to  their  former  sovereign,  by  virtue  of  the 
law  of  postliminy.  It  is  true,  that  at  the  very  time  when  those 
places  came  into  the  power  of  the  Dutch,  there  was  no  king 
of  Portugal,  but  when  afterwards,  that  country  was  restored 
to  its  independency,  the  Portuguese  were  entitled  to  resume 
the  possession  of  the  territories  that  had  been  conquered  by 
their  allies  from  the  enemies,  saving  the  claim  of  the  states- 
general  for  the  expenses  which  they  had  incurred  in  taking 
them. 


TREATISE  ON  THE  LAW  OF  WAR.  127 


CHAPTER  XVII. 

Of  Pirates. 

f  T  is  a  principle  consonant  to  reason  and  sanctioned  by  the 
•*-  rules  of  positive  law,  that  things  taken  by  pirates  or  rob-  ' 
bers,  do  not  thereby  undergo  a  change  of  property,  nor  require 
the  operation  of  the  law  of  postliminy  to  return  to  their  former 
owners.  The  authority  of  the  Digest  is  in  point,*  and  I  have 
shewn  in  a  former  chapter,!  that  this  rule  has  been  adopted 
by  several  nations  in  their  treaties  with  each  other.  I  need 
not,  therefore,  bring  forward  the  additional  authorities  of 
Grotius^  Gentilis,§  and  Zouch^  and  of  a  number  of  other 
writers.  But  I  shall  proceed  to  examine  who  are  the  persons 
to  whom  we  may  properly  apply  the  denomination  of  pirates 
and  robbers. 

We  call  pirates  and  plunderers^  (prcedones}  those,  who, 
without  the  authorization  of  any  sovereign,  commit  depre- 
dations by  sea  or  land.H  Hence,  by  the  law  of  this  country,  they 

*  ff.  De  Capt.  &  Postlim.  Revers.  I.  19.  $  2.  Ibid.  1.  24.  27- 

f  C.  15. 

t  De  J.  B.  ac  P  1.  3.  c.  9.  §.  16. 

§  De  Jure  Belli,  1.  1.  c.  4. 

||  De  Jure  Fee.  P.  2.  §  8.  Q:  15. 

U  Our  author's  definition  seems  to  be  intended  to  apply  equally  to  pirates 
and  land-robbers;  whereas  it  might  have  been  expected  that  he  would  have 
given  one  to  be  applied  exclusively  to  the  former  description  of  men.  We 
have  not  been  able  to  find  one  in  the  books  altogether  satisfactory,  that  given 
by  Mr.  Hawkins  seems  deficient,  inasmuch  as  it  might  possibly  be  applied 
to  those  who  sail  tuitli,  as  well  as  to  those  who  sail  without  a  commission  from 
a  sovereign.  He  defines  a  pirate,  "  one  who  to  enrich  himself,  either  by 
surprise  or  open  force,  sets  upon  merchants  or  others,  trading  by  sea,  to 
spoil  them  of  their  goods  and  treasure."  1  Hawk.  P.  C.  267.  Independent 
of  the  objection  which  we  have  made,  there  appears  to  be  in  this  definition 
a  great  deal  of  unnecessary  redundancy. 

Were 


128  TREATISE  ON  THE  LAW  OF  WAR. 

are  punished  as  pirates,  who  sail  out  for  the  purpose  of  making 
depredations  on  the  enemy,  without  a  commission  from  the 
admiral,  and  without  having  complied  with  the  requisites  of 

Were  we  to  presume  to  offer  a  definition  of  our  own,  we  would  say,  that 
a  pirate  is  "he,  who  sailing  without  being  authorized  by  any  sovereign  to 
make  captures,  (or  with  commissions  from  different  sovereigns  at  war  with 
each  other),  commits  depredations  at  sea  or  on  shore."  We  say,  "  or  on 
shore,"  because  it  appears  to  us,  that  on  the  principle  of  the  celebrated 
case  of  Lindo  v.  Rodney,  Doug.  591 .  (which,  we  think,  may  be  extended 
thus  far  without  straining  its  analogy),  if  the  crew  of  an  unlicensed  cruiser 
should  land  on  a  defenceless  coast,  there  commit  depredations  and  carry  off 
the  booty  on  board  of  their  ship,  the  act  would  be  piracy;  and  to  be  tried  in 
a  court  having  admiralty  jurisdiction.  This  doctrine  (if  correct)  may  find 
its  application  in  case  such  pirates  should  be  brought  or  found  in  a  country 
different  from  that  in  which  the  depredations  were  committed.  There, 
unless  they  could  be  tried  as  pirates,  they  could  not  be  tried  at  all. 

We  mean  to  speak  here  of  piracy  by  the  lav:  of  nations  only,  not  of  tint', 
offence  as  it  is  considered  at  the  common  law.  The  definition  above  quoted 
from  Hawkins,  was  clearly  meant  by  him  to  apply  merely  to  piracy  by  the  law 
of  nations,  for,  in  the  very  next  page  he  gives  us  the  common  law  definition  ot' 
the  same  crime,  which  is  very  different  from  the  former  one.  "  A  pirate," 
says  he,  "at  the  common  law,  is  a  person  who  commits  any  of  those  acts  of 

f  robbery  and  depredation  on  the  high  seas,  which,  if  committed  at  land, 
would  have  amounted  to  felony."  1  Haivk  P.  C.  268.  On  the  same  prin- 
ciple, the  law  of  the  United  States  defines  piracy  in  general,  the  commission 
at  sea,  or  in  a  river,  haven,  bason  or  bay,  out  of  the  jurisdiction  of  any  par- 
ticular state,  of  murder,  robbery,  or  any  other  offence,  which,  if  committed 
•within  the  body  of  a  county,  would,  by  the  law  of  the  United  States,  be  punish 

}  able  with  death.  Act  of  the  30th  of  April  1790.  §  8.— 1  LO-KS  U.  S.  102. 
Several  other  offences  are  made  piracy  by  the  same  statute,  which  come 
within  the  proper  scope  of  municipal  legislation. 

Here,  then,  appear  to  be  two  different  and  distinct  species  of  offences; 
one  against  the  general  lavs  of  nations,  and  the  other  against  the  municipal 
law  of  the  land.  The  laws  which  constitute  the  latter  kind  of  crime,  are  in 
some  respects  more  extensive,  and  in  others  more  restricted  than  that  which 
defines  the  former.  They  are  more  extensive,  in  as  much  as  they  make 
piracy  of  an  act  of  felony  committed  by  an  individual  at  sea,  even  on  board 
of  a  commissioned  vessel  of  his  own  nation,  and  more  restricted,  because 
they  require,  in  order  to  constitute  a  piratical  act,  the  commission  at  sea 
of  a  common  or  statute  lav>  felony,  whereas  the  law  of  nations  in  its  definitions 
of  crimes,  does  not  take  notice  of  the  technical  rules  of  the  common  or  any 
other  municipal  law. 

An  important  question  here  occurs:  "  Whether  an  act  of  piracy,  clearly 
considered  as  such  by  the  law  of  nations,  may  be  inquired  of,  and  punished 
by  the  courts  of  England  or  the  United  States  possessing  admiralty  juris- 
diction in  criminal  cases,  although  it  should  not  be  piracy  at  the  common 


TREATISE  ON  THE  LAW  OF  WAR.  129 

the  law,  on  the  subject  of  privateering.  If  an  inhabitant  of  the 
United  Netherlands  should  sail  out  under  a  commission  from 
any  foreign  prince,  or,  without  the  consent  of  the  states-general, 
should  take  a  foreign  commission  in  addition  to  one  from  our 
own  government,  he  is  to  be  punished  by  the  forfeiture  of  life 
and  goods,  and  of  the  security  given  on  receiving  his  commis- 
sion here.*  By  another  lawf  it  is  decreed,  that  those  who 
shall  act  thus  are  to  be  considered  as  pirates^  which  is  very 
reasonable,  because  they  might  thus  commit  depredations  on 
the  subjects  of  nations  in  amity  with  us,  and  involve  their  own 
sovereign  into  a  \var.§  Probably  this  last  law  was  made  on 

lava,  nor  be  expressly  provided  for  by  statute?  The  learned  Wooddeson 
is  in  favour  of  the  affirmative.  "  Whether,"  says  he,  "  a  charge  amounts 
to  piracy  or  not,  must  still  depend  on  the  LAW  OF  NATIONS,  except 
where,  in  the  case  of  British  subjects,  express  acts  of  parliament  have 
declared,  that  the  crimes  therein  specified  shall  be  adjudged  piracy,  or 
shall  be  liable  to  the  same  mode  of  trial  and  degree  of  punishment." 
1  Wooddes.  140.  T. 

*  Edicts  of  the  27th  of  July  1627,  and  26th  of  April  1653. 

f  Edict  of  the  29th  of  January  1658. 

\  By  the  law  of  the  United  States,  "  any  citizen  accepting  or  exercising 
within  the  American  territory,  a  commission  from  a  foreign  prince,  shall  be 
fined  not  exceeding  two  thousand  dollars,  and  imprisoned  not  exceeding 
three  years;  and  any  person  who,  in  the  United  States,  shall  fit  or  attempt  to 
fit  out  or  be  concerned  in  a  privateer,  with  intent  to  commit  hostilities 
against  a  foreign  state,  with  whom  the  United  States  are  at  peace,  or  shall 
deliver  a  (foreign)  commission  for  any  ship  or  vessel  to  be  employed  as 
aforesaid,  shall  be  fined  not  exceeding  five  thousand  dollars,  imprisoned  not 
exceeding  three  years,  and  the  vessel  with  all  her  materials  shall  be  for- 
feited." Act  of  the  5th  of  June  1794—3  Laws  U.  S.  89.  And  by  a  subsequent 
act,  "  if  any  citizen  of  the  United  States  shall,  without  the  limits  of  the  same, 
fit  out  or  procure  to  be  fitted  out,  or  knowingly  be  concerned  in  the  fitting 
out  of  a  privateer  for  the  purpose  of  cruising  against  the  subjects  of  a 
nation  in  amity  with  us,  or  shall  take  the  command,  or  serve  on  board  of 
such  privateer,  or  purchase  any  interest  in  her,  he  shall  be  adjudged  guilty 
of  a  high  misdemeanor,  and  be  punished  by  a  fine  not  exceeding  ten 
thousand  dollars,  and  imprisonment  not  exceeding  ten  years."  Act  of  the 
4th  of  June  1797.— 4  Laws  U.  S.  3.  T. 

§  Sir  Leoline  Jenkins  considers  those  who  commit  depredations  under- 
several  commissions  from  different  sovereigns,  as  pirates  in  the  highest 
degree.  "  The  law,"  says  he,  "  distinguishes  between  a  pirate  who  is  a 
highwayman,  and  sets  up  for  robbing,  either  having  no  commission  at  all, 
or  else  hath  two  or  three,  and  a  lawful  man  of  war  that  exceeds  his  commis 


130  TREATISE  ON  THE  LAW  OF  WAR. 

account  of  those  who,  in  the  month  of  November  1657,  com- 
mitted depredations  under  double  commissions  from  France 
and  Portugal,*  of  whom  I  have  read  in  the  newspapers  of  that 
time. 

But  what  shall  we  say  of  those  who  make  use  of  double 
passports  or  sea-letters,  as  is  frequently  done  by  masters  of 
vessels,  in  order  to  carry  on  a  contraband  trade,  or  to  commit 
other  frauds  with  greater  safety?  They,  indeed,  are  not 
equally  guilty  with  pirates;  yet,  the  states-general,  by  their 
edicts  of  the  31st  of  December  1657,  have  ordered  the  con- 
fiscation of  their  ships  and  goods.  Certain  sophistical  lawyers! 
have  pretended  to  argue,  that  such  an  act  does  no  injury  to  us, 
if  it  is  not  done  in  fraud  of  our  own  laws;  but  this  is  a  weak 
and  silly  argument,  for  it  is  important  to  the  world  at  large, 

sion.  2  L.  Jenk.  714.  There  may  be  a  difference,  however,  if  the  commis- 
sions are  from  sovereigns  in  alliance  with  each  other;  but  although  in  such 
a  case  it  might  not  amount  to  the  crime  of  piracy,  still  it  would  be  irregular 
and  illegal,  because  the  two  belligerents  might  have  adopted  different 
rules  of  conduct  with  respect  to  neutrals,  or  may  be  separately  bound 
by  engagements  unknown  to  the  party.  Regularly,  no  one  ought  to  accept 
of  a  commission  from  a  foreign  prince,  without  the  permission  of  his  own 
sovereign. 

On  this  subject,  we  know,  that  there  have  been  various  opinions.  The  che- 
valier de  Abreu,  (a  Spaniard),  in  his  Treatise  on  Captures,  first  published  at 
Cadiz,  in  1756,  and  lately  at  Paris,  in  a  French  translation,  in  1802 — thinks,  that 
there  can  be  no  inconvenience  in  taking  several  commissions  from  different 
sovereigns  allied  in  the  same  war,  because  they  all  tend  to  the  same  end, 
the  destruction  of  the  common  enemy.  Abreu,  part  2.  c.  1.  §  7. — but  we  cannot 
agree  with  him  on  this  point,  because  we  think,  that  it  does  not  belong  to 
an  individual  to  judge  of  the  relations  that  may  exist  between  different 
sovereigns,  and  on  his  single  responsibility  to  run  the  risk  of  involving  his 
own  country  into  a  war.  Louis  XIV.  in  his  Ordonnance  de  la  Marine  (fi  1681, 
expressly  forbids  his  subjects  and  all  persons  residing  in  France,  to  take 
commissions  from  other  sovereigns,  without  distinguishing  whether  his 
allies  or  not,  under  the  penalty  of  being  punished  as  pirates.  Ord.  tit.  des 
Prises,  art.  3.  Valin,  for  various  excellent  reasons,  thinks,  that  independent  of 
positive  law,  the  taking  of^pevcral  commissions  even  from  allied  sovereigns, 
cannot  be  justified,  and  strongly  combats  the  opinion  of  the  chevalier  de 
Abreu.  2  Vol.  Comment.  236.  T. 

*  France  and  the  United  Netherlands  were  at  that  time  in  alliance  together 
against  Spain,  and  the  United  Netherlands  were  engaged  in  a  separate  war 
against  Portugal.  T. 

+  Consil  Belg.  vol.  4.  Cons.  20". 


TREATISE  ON  THE  LAW  OF  WAR.  13 1 

that  good  faith  should  be  preserved  between  sovereigns  and 
their  subjects,  and  that  the  latter  should  not  be  permitted  to 
injure  the  former,  by  their  fraudulent  conduct.* 

There  are  also  others,  who,  although  they  are  not  properly 
called  pirates,  yet  on  account  of  the  atrocity  of  their  crimes, 
are  punished  as  such.  It  is  so  with  those  hostile  ships  who  come 
too  near  our  shores,  in  violation  of  the  prohibition  of  the  sove- 
reign. On  the  24th  of  February  1696,  the  states-general  issued 
an  edict,  by  which  it  was  enacted,  "  that  all  French  privateers 
which  should  come  close  to  the  land,  zvithin  the  buoys,  a  fleet 
not  being  at  hand  to  protect  them,  should  be  capitally  punished, 
and  this  law  was  actually  carried  into  execution,  at  Gfoningvn, 
on  the  14th  of  March  of  the  same  year.  By  what  right  such 
things  are  done,  I  have  discussed  in  a  former  chapter.f  Those 
also  by  our  laws  are  punished  as  pirates,  who  commit  frauds 
in  matters  of  insurance,:}:  and  likewise  those  who  cut  the  nets 
which  are  spread  out  for  the  herring  fishery.^ 

Albericus  Gentilis,\\  and  several  other  writers  are  of  opinion, 
that  those  nations  of  Africa,  whom  we  call  Barbarians,  are  to 
be  considered  as  pirates,  and  that  captures  made  by  them, 
work  no  change  of  property;  but  that  opinion  cannot  be  de- 
fended on  any  rational  principle.  The  Algerines,  Tripolitans, 
Tunisians,  and  those  of  Sake,  are  not  pirates,  but  regularly 
organized  societies,  who  have  a  fixed  territory  and  an  estab- 

*  In  England  and  in  the  United  States,  the  rule  is,  that  the  courts  take  no 
notice  of  the  revenue  laws  of  other  countries;  and  therefore,  insurances 
made  on  goods  or  voyages  prohibited  abroad  are  supported  when  not  con- 
trary to  the  stipulations  of  the  parties.  Pianche  \.  Fletcher,  Dougl.  2,38. 
This  principle,  however,  lias  been  much  contested  by  writers  on  both  sides 
of  the  question;  of  which  controversy  see  an  account  in  Part  on  Insur. 
341.  6th  edit.  T. 

f  Above,  c.  3.  p.  19. 

\  Edict  of  Philip  the  2d  on  Insurance,  of  the  26th  of  January  1550.  §  22. 
We  have  not  been  able  to  ascertain  the  precise  extent  of  this  law.  It  is  not 
mentioned  in  the  Curia  Philipica,  nor  inserted  with  the  other  maritime 
ordinances  of  the  same  sovereign,  in  Les  Us  &  Ccutumes  de  la  Jlfer,  nor  in 
Adriaan  Vertxer's  collection  of  Spanish  and  Dutch  maritime  laws,  entitled 
"  Over  de  Zee-Sechten."  T. 

§  Edict  of  Philip  the  2d.  of  the  9th  of  -March  1580.  §  23. 

!!  De  Advoc.  Hispan.  1.  1.  c.  15- 


A   4* 

132  TREATISE  ON  THE  LAW  OF  WAR. 

lished  government,  with  whom  we  are  now  at  peace  and 
now  at  war,  as  with  other  nations,  and"  who,  therefore,  are 
entitled  to  the  same  rights  as  other  independent  states.  The 
sovereigns  of  Europe  often  enter  into  treaties  with  them,  and 
the  states-general  have  done  it  in  several  instances.*  Cicero 
defines  a  regular  enemy  "  one  who  hath  a  commonwealth,  a 
court  of  justice,  a  treasury,  the  consent  and  agreement  of  the 
citizens,  and  who  pays  some  regard  to  treaties  of  peace  and 
alliance.f  All  these  things  are  to  be  found  among  the  Bar- 
barians of  Africa,  for  they  pay  the  same  regard  to  treaties  of 
peace  and  alliance  that  other  nations  do,  who  generally  attend 
more  to  their  convenience  than  to  their  engagements.  And  if 
they  should  not  observe  the  faith  of  treaties  with  the  most 
scrupulous  respect,  it  cannot  be  well  required  of  them;  for, 
it  would  be  required  in  vain  of  other  sovereigns.  Nay,  if  they 
should  even  act  with  more  injustice  than  other  nations  do, 
they  should  not  on  that  account,  as  Huberus\  very  properly 
observes,  lose  the  rights  and  privileges  of  sovereign  states. 

Indeed,  as  the  Algerines  constitute  a  republic,  ambassadors 
are  sent  to  them  by  other  princes,  and  those  who  are  made 
prisoners  by  them,  change  their  condition  and  become  slaves. § 
Perhaps  the  Spaniards  do  not  reckon  those  Barbarians  among 
the  number  of  regular  enemies;  but,  although  it  may  be 
correct,  as  to  them,  the  principle  will  not  bear  to  be  extended 
beyond  Spain.  The  Dutch,  it  is  true,  are  in  the  habit  of  car- 
rying their  Algerine  prisoners  into  Spain,  and  there  by  the 
lex  talionis,  to  sell  them  into  slavery,  but  this  is  conformable 
to  the  law  of  war,  which  may  be  carried  into  execution  against 

*  Particularly  on  the  30th  of  April  1679,  and  1st  of  May  1680,  and  often 
afterwards. 

f  §>ui  haberet  Bempublicam,  curiam,  <erariitm,  comensuin,  &  concordiani 
civium,  rationein  alifjuain,  si  res  itd  tulisset,  pads  Cr  foederis.  Cic.  Philip. 
4.  C.  14. 

\  De  Jure  Civitat.  1.  3.  c.  5.  $  4.  n.  ult. 

§  Hence,  those  who  are  taken  by  the  Algerines  are  not  only  privately,  but 
sometimes  publicly,  redeemed.  The  states-general,  on  the  25th  of  Sep- 
tember 1681,  ordained,  that  the  bailiffs  of  towns  should  report  to  the  magis- 
trates those  of  their  inhabitants  who  should  be  taken  by  the  Algerines,  and 
that  the  magistrates  should  report  to  the  counsellors  of  the  states  of  Holland, 
'hat  they  might  take  measures  to  effect  the  redemption  of  the  captives. 


TREATISE  ON  THE  LAW  OF  WAR.  133 

an  enemy,  if  one  thinks  proper,  under  such  circumstances  as 
I  have  above  discussed  in  the  third  chapter. 

There  has  been  a  case,  however,  in  which  those  Africans 
have  been  considered  to  a  certain  degree  as  pirates,  so  far,  at 
least,  that  their  capture  was  not  thought  to  have  worked  any 
change  of  property.  On  the  15th  of  July  1664,  the  admiralty 
of  Amsterdam  restored,  -without  salvage,  a  vessel  which  the 
Algerines  had  taken  from  the  English,  and  which  the  Dutch 
admiral  had  recaptured  from  the  Algerines,  and  the  said  vessel 
was  so  restored,  as  Aitzema  relates,*  at  the  request  of  the 
English  ambassador,  in  hopes  that  the  English  would  do 
the  same  by  us  in  similar  cases.  But  lest  this  case  should  be 
drawn  into  a  precedent,  it  ought  to  be  known,  that  the  Al- 
gerines had  taken  that  vessel  in  the  midst  of  a  peace  which 
had  been  lately  concluded  by  them  with  the  English  and 
Dutch,  and  for  that  reason  alone  it  had  been  considered  that 
their  capture  under  such  circumstances,  had  worked  no  change 
of  property.  Such,  according  to  Aitzema,  was  the  reason  given 
by  the  English  ambassador;  whether  it  was  sufficient  or  not,  I 
shall  not  now  consider,  being  satisfied  with  observing,  that 
this  ought  to  be,  and  in  fact  it  was  considered  by  both  parties 
at  the  time,  as  a  singular  case. 

What  is  the  proper  forum  or  jurisdiction  for  the  trial  of 
pirates  may  be  and  has  often  been  questioned?!  ^  suc^  a 
one,  although  a  foreigner,  should  commit  depredations  upon 
our  citizens, :£  and  be  taken,  I  have  no  doubt  but  that  he  may 

*   Aitz.  1.  44. 

f  I»  the  original,  there  is  in  this  place,  a  long  dissertation  on  the 
subject  of  the  respective  jurisdictions  of  the  Dutch  admiralty  courts 
and  their  ordinary  tribunals,  which  we  have  left  out,  as  uninteresting  and 
useless.  T. 

\  As  the  law  of  nations  is  at  present  understood,  it  is  of  no  importance, 
for  the  purpose  of  giving  jurisdiction,  on  'whom  or  where  the  piratical  offence 
has  been  committed.  A  pirate  is  considered  as  an  enemy  of  the  human  race, 
Chostis  humani  generis;}  and  therefore,  may  be  tried,  convicted  and 
punished  in  any  country  where  he  may  be  found.  "  Every  man,"  says  sir 
Leoline  Jenkins,  "by  the  usage  of  our  European  nations,  is  justiciable  in  the 
place  where  the  crime  is  committed;  so  are  pirates;  being  reputed  out  of 
the  protection  of  all  laws  and  privileges,  and  to  be  tried  in  what  port s  soever 
they  may  be  taken.  2  L.  Jenk.  714.  T, 


/ 

134  TREATISE  ON  THE  LAW  OF  WAR. 

properly  be  tried  and  punished  by  our  own  tribunals,  not  only 
if  he  is  taken  in  the  fact  and  brought  into  our  country,  but 
also  if  he  should  be  found  and  taken  among  us  on  any  other 
occasion.  This  must  be  admitted,  if  he  has  committed  depre- 
dations upon  us  without  any  commission  from  his  sovereign, 
but  if  he  had  a  commission,  and  it  is  only  alleged  that  he 
exceeded  it,  then  the  question  becomes  more  susceptible  of 
doubt. 

In  the  year  1667,  this  subject  was  agitated  between  the 
English*  and  the  states-general,  concerning  those  who  had 
obtained  letters  of  reprisal  while  there  were  differences  sub- 

*  The  English,  however,  a  few  years  afterwards,  unjustly,  in  our  opinion, 
claimed  and  exercised  the  right  of  trying  and  punishing  a  regularly  com- 
missioned privateer  for  having  exceeded  the  bounds  of  his  commission. 
The  case  is  related  by  sir  Leoline  Jenkins,  whose  advice  was  taken  and 
followed  on  the  occasion.  In  the  year  1675,  one  Cheline,  the  commander  of 
a  French  privateer,  having  committed  several  unwarrantable  depredations 
at  sea,  and  among  other  things,  plundered  several  English  vessels  of  their 
provisions,  (England  being  at  that  time  in  amity  with  France),  went  with  his 
ship  into  the  port  of  Kinsale,  in  Ireland,  where  his  crew  having  informed 
against  him,  sir  Leoline  Jenkins  was  consulted  by  the  king  on  his  case,  and 
gave  it  as  his  opinion,  that  he  was  liable  to  be  punished  with  death  as  a 
pirate,  and  that  his  goods  and  vessel  should  be  confiscated.  Cheline, 
however,  having  had  wind  of  the  intended  prosecution,  escaped  from 
Ireland,  but  his  vessel  and  goods  were  seized,  proceeded  against  in  the 
court  of  admiralty  and  confiscated.  In  vain  the  king  of  France,  whose  com- 
mission he  bore,  demanded  that  the  cause  should  be  remitted  to  him  for 
trial;  sir  Leoline  answered,  that  this  matter  of  r envoy  (remitting  of  causes 
to  foreign  sovereigns  for  trial)  was  quite  disused  among  princes;  and  as  to 
Cheline's  commission,  he  said,  that  it  had  only  been  given  to  him  to  cruise 
against  the  enemies  of  the  most  Christian  ting,  and  did  not  give  him  the 
right  of  pillaging  the  king's  friends.  2  L.  Jenk  714.  754 — Mr.  Wooddeson 
is  mistaken,  when  he  says,  that  Cheline  was  held  not  to  be  punishable  for 
piracy,  because  he  had  a  commission  from  the  king  of  f  ranee.  2  Wooddes.  425. 
He  was  actually  punished  as  a  pirate  as  far  as  the  confiscation  of  his  ship 
and  goods,  and  if  his  person  had  been  laid  hold  of,  would  have  been  hanged 
as  such,  for  plundering  the  English  vessels  at  sea.  It  is  true,  that  among 
the  charges  exhibited  against  him,  there  was  one  for  attacking  and  taking 
a  Dutch  ship,  near  the  port  of  Dublin,  and  that  on  this  particular  charge, 
sir  Z.  Jenkins  gave  it  as  his  ophiion,  that  he  could  not  be  capitally 
convicted;  but  it  was  not  on  the  ground  of  his  being  bearer  of  a  French 
commission,  but  because  the  statute  had  provided  a  different  punishment 
3  /..  Jenk.  754.  T 


TREATISE  ON  THE  LAW  OF  WAR.  135 

sisting  between  the  two  nations,  and  who  committed  depre- 
dations even  after  the  peace.  The  English  contended,  that 
they  were  to  be  tried  by  the  courts  of  the  sovereign  who  had 
granted  the  letters  of  reprisal.  The  ambassadors  of  the  states- 
general  insisted,  that  those  who  committed  hostilities  without 
a  lawful  authority  from  their  sovereign,  were  to  be  considered 
as  pirates,  that  such  was  the  general  law  of  nations,  and  that 
offenders  of  that  description  might  be  punished  by  any  sove- 
reign into  whose  dominions  they  might  be  brought,  of  which 
there  was  a  great  number  of  examples.  The  French  ambas- 
sadors at  that  time  were  of  the  same  opinion  in  which  the 
English  and  the  states-general  then  concurred.* 

But  whether  one  be  a  pirate  or  not,  depends  upon  the  fact, 
whether  he  has  or  not,  a  commission  to  cruise;  and  if  it  should 
be  alleged  that  he  exceeded  the  authority  which  that  commis- 
sion gave  him,  I  would  not,  on  that  account,  hold  him  to  be  a 
pirate.  Generally,  the  sovereigns  who  grant  the  commissions, 
decide  on  the  captures  that  are  made  by  virtue  thereof,  because 
the  prizes  are  brought  within  their  dominions;!  but  I  would 
have  no  objection  to  such  decision  being  made  by  the  sovereign 
whose  subjects  complain  of  depredation,  if  the  perpetrators 
should  be  brought  or  apprehended  within  his  territory.^  By 

*  Aitz.  1.  47. 

|  Professor  Rutherforth,  in  his  Institutes  of  Natural  Law,  gives  a  different 
reason  for  allowing  to  the  sovereign  of  the  captors,  the  exclusive  right  of 
adjudicating  prizes  made  under  his  authority.  "  It  is  not,"  says  he, 
'*  because  the  prize  has  been  brought  into  the  territory  of  that  sovereign, 
that  he  is  entitled  to  an  exclusive  jurisdiction  in  such  cases;  for,  the 
controversy  arose  upon  the  main  ocean,  which  is  out  of  his  territory,  and 
as  he  had  no  jurisdiction  in  the  first  instance,  the  subsequent  act  of  bringing 
the  prize  into  his  territory  will  not  give  him  any.  But  the  reason  is,  thai: 
the  state  to  which  the  captors  belong  has  a  right  to  inspect  into  their  be- 
haviour; both  because  they  are  members  of  it,  and  because  it  is  answerable 
to  all  other  states  for  what  they  do  in  war."  2  Buth.  595,  596.  Cambridge 
edit.  T. 

\  Several  plausible  schemes  have  been  proposed  for  establishing  a  more 
impartial  jurisdiction  for  the  trial  of  neutral  property  taken  in  war,  but 
none  of  them  has  yet  obtained  the  general  assent  of  mankind,  or  has  even 
been  adopted  by  a  single  nation.  Hubner  is  for  a  mixed  tribunal,  to  consist 
of  commissioners  respectively  appointed  by  the  sovereigns  of  the  captors 
and  the  captured,  with  the  addition,  when  the  prize  is  carried  into  a  neutral 
port,  of  one  or  more  judges  appointed  by  the  sovereign  of  the  neutral  tf*~ 


136          TREATISE  ON  THE  LAW  OF  WAR. 

the  22d  article  of  the  treaty  of  peace  between  the  king  of 
France  and  the  states-general,  of  the  27th  of  April  1662,  it  is 
stipulated,  "  that  vessels  which  shall  be  taken  by  ships  of  war 
or  commissioned  privateers,  shall  be  tried  in  the  dominions 
of  the  sovereign  by  whom  the  commission  shall  have  been 
granted,  and  not  elsewhere." 

It  is  more  difficult  to  decide,  whether  a  foreigner  who  has 
committed  depredations  on  other  foreigners,  may,  if  he  should 
be  found  among  us,  be  tried  by  our  tribunals?  In  the  year 
1661,  doubts  were  entertained  upon  this  subject,  in  the  case 
of  a  Portuguese  privateer  who  had  committed  depredations  on 
the  subjects  of  a  nation  in  amity  with  us  and  not  at  war  with 
Portugal,  but  the  spoliator  having  died  in  the  meanwhile, 
nothing  was  decided  upon  it.*  In  the  year  1668,  the  king  of 
England,  on  the  representation  of  the  ambassadors  of  the 
states-general,  ordered  an  Ostend  ship,  cruising  under  a  com- 

ritory.  2  Hubn.  44. — Gallant  is  for  vesting  that  jurisdiction,  in  some  cases, 
in  the  tribunals  of  the  captor,  and  in  others  in  those  of  the  captured. 
De'  doveri,  l£>c.  1. 1.  c.  9.  §  8.,  but  the  ancient  practice  has  continued  and  still 
continues  to  be  followed. 

It  is  true,  however,  that  when  prizes  are  brought  into  a  neutral  port,  the 
neutral  sovereign  will  restore  the  property  of  its  subjects  or  citizens,  if  it 
has  been  illegally  captured.  That  this  doctrine  is  not  new,  appears  clearly 
from  the  15th  article  of  the  marine  ordinance  of  Louis  the  XIV.  title  des 
Prises,  which  contains  this  express  clause:  "  If  on  board  of  the  prizes  which 
shall  be  brought  into  our  ports  by  foreign  armed  vessels,  there  shall  be 
found  goods  belonging  to  our  subjects  or  allies,  those  of  our  subjects  shall 
be  restored  to  them,"  and  this  right,  says  Valin,  "  is  exercised  by  way  of 
compensation  for  the  asylum,  granted  to  the  captor  and  his  prize."  2  Valin\i 
Comment.  274. 

The  same  right  has  been  exercised  by  the  courts  of  the  United  States,  in 
various  instances,  during  the  last  war  between  Great-Britain  and  France. 
Glass  &  Gibbs  V.  The  Betsy.  2  Dallas's  Reports  6.—Hollingsworth  v.  The 
Betsy.  2  Peter g's  Admiralty  Reports,  330. 

In  like  manner,  prizes  taken  by  foreign  privateers  fitted  out  in  the 
United  States,  in  violation  of  our  neutrality,  and  brought  into  our  ports, 
have  been  invariably  restored.  Talbot  v.  yansen.  2  Dallas,  1.33.  and  by  an 
act  of  congress  of  the  5th  of  June  1794,  the  district  courts  are  authorized 
"  to  take  cognizance  of  complaints,  by  whomsoever  instituted,  in  case  of 
captures  made  within  the  waters  of  the  United  States,  or  within  a  marine 
league  of  the  coasts  or  shores  thereof."  3  Laws  U.  S.  91.  T. 

*  Aitz.  1.  41. 


TREATISE  ON  THE  LAW  OF  WAR.  137 

mission  from  the  king  of  Spain,  which  had  taken  a  Dutch 
vessel,  to  be  detained,  and  the  laws  to  be  executed  upon  the 
captain  * 

It  is  clear,  that  if  the  law  of  the  neutral  country  (like  the 
two  edicts  which  I  have  mentioned  above)f  forbid  the  selling 
of  prizes  on  the  neutral  territory,  unless  they  have  been  car- 
ried into  the  port  where  the  privateer  was  fitted  out,  and  there 
legally  condemned,  it  will  appear  unjust  to  give  an  action 
against  the  captor,  either  to  the  government  for  the  punish- 
ment of  the  offence,  or  to  the  owners  of  the  captured  property 
for  the  damage  suffered.  The  condition  of  both  foreigners 
ought  to  be  alike;  if  the  spoliated  party  is  permitted  to  bring 
his  action  against  the  captor,  the  latter  ought  to  be  allowed 
to  justify  himself,  by  shewing  that  his  prize  was  legally  cap- 
tured. And  yet,  it  would  be  hard  and  unexampled,  to  deny  to 
the  owner  of  the  captured  ship  and  goods,  the  right  of  claim* 
ing  satisfaction  from  a  foreigner  whom  he  finds  here,  and  who 
may  be  immediately  going  nobody  knows  whither.  For  this 
reason,  I  am  not  satisfied  with  the  two  edicts  above  mentioned, 

*  The  fact,  as  related  by  Aitzema,  (I.  48.)  is  as  follows:  The  Dutch  am- 
bassadors complained  to  his  majesty  of  the  intolerable  insolence  of  the 
Ostend  privateers,  and  expressed  their  opinion  of  the  manner  in  which  it 
should  be  proceeded  against  them;  they  spoke  in  particular  of  the  ship 
Jupiter  of  Amsterdam,  which  those  corsairs  had  shot  at  for  a  long  time, 
(making  them  believe  that  they  were  Turks},  and  had  frightened  them  so 
much,  that  the  crew  of  the  Jupiter  had  forsaken  her,  and  made  their 
escape  to  the  shore,  and  the  privateer  had  run  in  with  the  ship  into  the  Isle 
of  Wight. 

The  king  was  pleased  to  answer,  that  he  had  heard  great  complaints  on 
all  sides  of  the  conduct  of  the  Ostend  privateers;  that  they  were,  in  fact, 
mere  pirates,  but  that  he  would  put  a  stop  to  it;  that  if  any  of  his  sub- 
jects should  be  found  on  board  of  such  privateers,  they  should  be  hanged, 
and  that  he  would  make  strong  representations  to  the  court  of  Brussels,  that 
they  should  inflict  the  severest  penalties  upon  such  robbers;  that  with 
regard  to  the  ship  Jupiter,  the  ambassadors  should  present  a  memorial  to 
the  council  of  state,  who  would  take  order  upon  the  subject.  "  The  me- 
morial," continues  Aitzema,  "  was  accordingly  presented,  on  which  his 
majesty  was  pleased  to  resolve,  that  the  captain  of  the  privateer  and  his  ship 
should  be  arrested,  and  proceeded  against  according  to  law."  6  Aits.  395. 
fol.  edit.  What  was  afterwards  done  with  them,  does  not  appear.  T. 

+  C.  15.  p.  121. 

f  S 


138  TREATISE  ON  THE  LAW  OF  WAR. 

The  common  punishment  of  pirates  is  the  forfeiture  of  their 
lives  and  goods,  which  is  sufficiently  pointed  out  by  all  the 
edicts  which  I  have  above  related,  made  on  the  subject  of 
those,  who,  from  the  atrocity  of  their  crimes,  are  to  be  con- 
sidered as  such.  But  there  is  a  special  edict  of  the  states- 
general,  of  the  25th  of  August  1611,  against  pirates^  properly 
so  called,  their  aiders  and  abettors,  by  which  they  are  punished 
with  the  forfeiture  of  life  and  goods,  one  third  of  the  goods 
being  given  to  the  informer.  The  penalty,  therefore,  is  capital, 
and  it  is  not  in  the  power  of  the  judges  to  mitigate  the  punish- 
ment: They  do,  however,  execute  the  law  with  more  or  less 
rigour,  on  account  of  the  frequency  of  piracies  and  other 
offences  of  the  like  nature.  And,  indeed,  provided  death  is 
inflicted,  the  remainder  may  be  left  to  the  discretion  of  the 
judge,  as  is  the  case  with  almost  all  other  crimes,  for  which 
the  law  in  general  terms  directs  a  capital  punishment.* 

*  If  we  have  not  mistaken  the  meaning  of  this  passage,  it  seems  that  the 
mode  of  inflicting  the  punishment  of  death,  when  the  law  had  not  expressly 
provided  it,  was  formerly  left,  in  Holland,  to  the  discretion  of  the  judges. 
We  wish  that  we  may  have  misunderstood  it.  T. 


TREATISE  ON  THE  LAW  OF  WAR.  139 


CHAPTER  XVIII. 

Of  Privateers. 

'T^HIS  subject  also  properly  belongs  to  the  law  of  nations, 
-*•  not  only  because  privateering  cannot  be  lawfully  carried 
on  without  an  authorization  from  the  government,  but  be- 
cause the  controversies  which  arise  out  of  it,  often  create  dis- 
turbance within  the  state,  and  set  sovereigns  at  variance  with 
each  other. 

It  was  formerly  held  at  Rome,  that  one  who  was  not  regularly 
enrolled  as  a  soldier,  could  not  lawfully  kill  an  enemy  of  the 
Roman  people.  Such  was  the  opinion  of  Cato,  as  we  are  in- 
formed by  Cicero*  and  Plutarch.]  But  it  appears  from  the 
Digest^  that  the  law  of  Solon,§  by  which  individuals  were  per- 
mitted to  form  associations  for  the  purpose  of  plunder,  was 
afterwards  introduced  into  the  Roman  system  of  laws,  and 
made  a  part  of  their  code.|| 

*  De  Offic.  c.  11.  The  reference  in  the  original  is  by  mistake  to  c. 
36, 37.  T. 

f  Qusest.  Rom.  39. 

4  ff.  de  Colleg.  &  Corpor.  1.  4. 

§  Among  the  ancient  Greeks  and  Romans,  down  to  the  time  of  Tarquin,  it 
was  considered  as  glorious,  to  plunder  foreigners  at  sea,  with  whom  there 
were  no  treaties  of  peace  or  alliance,  even  though  there  was  no  public 
or  open  war  against  them.  Grot.  De  Jure  B.  ac  P.  \.  2.  c.  15.  §  5. — Justin.!. 
43.  c.  3.  It  seems,  that  the  manners  of  those  nations  at  that  time  were  very 
similar  in  this  respect  to  those  of  the  barbarians  of  Africa  at  the  present 
day,  who  plunder  indiscriminately  all  those  with  whom  they  have  not,  by 
an  express  treaty,  agreed  to  remain  at  peace.  T. 

||  But  in  the  Latin  translation  which  is  subjoined  in  the  Digest  to  the 
Greek  text  of  Solon,  the  words  of  the  original  Ini  A/«V  o\x?l*-™°h  ("those  who  go 
out  for  plunder}  are  not  translated,  and  the  compilers  have  inserted  in  lieu 
thereof,  sodales  qui  multum  siinul  habitantes  stint,  (associates  who  live  a  great 
deal  together.}  This  difference  has  very  much  exercised  the  ingenuity  of 
the  doctors  of  the  civil  law,  to  whose  works  we  shall  refer  those  of  our 


140          TREATISE  ON  THE  LAW  OF  WAR. 

It  is  now,  indeed,  a  long  time  since  sovereigns  have  begun 
to  make  use  of  the  aid  of  individuals  against  their  enemies,  as 
auxiliary  to  the  public  force.  Formerly,  in  the  United  Nether- 
lands, there  were  no  vessels  of  war  but  such  as  were  owned  by 
private  persons,  to  whom,  besides  bounties  out  of  the  captured 
and  recaptured  property,  the  state  paid  a  certain  sum,  by  way 
of  indemnity  from  the  public  treasury,  proportioned  to  the 
expense  which  they  were  at,  and  to  the  time  which  they 
employed  in  hostile  expeditions.  A  great  use  was  made  of 
those  private  armed  vessels  (which  were  then  called  cruisers} 
by  the  states-general,  in  their  war  with  Spam.  Several  edicts 
were  made  respecting  them,  which  it  is  needless  to  relate. 

At  present,  as  well  as  formerly,  when  war  takes  place, 
vessels  are  fitted  out,  manned  and  armed  by  private  adven- 
turers at  their  own  expense,  with  which  they  attack  the  enemy's 
vessels  at  sea,  with  no  other  inducement  than  that  of  the  cap- 
tures which  they  expect  to  make.  These  have  been  called  capers 
and  freebooters,  but  now  by  a  more  decent  appellation  are  de- 
nominated privateers.  It  is  not  possible  to  ascertain  whether 
they  were  the  same  description  of  men,  who,  in  the  Digest, 
are  called  latrunculi.* ,  For  my  part,  I  do  not  believe  it,  nor 
do  I  think  that  Albericus  Gentilis  is  right  in  giving  them  the 
name  of  pirates,  which  he  does  throughout  his  work  De  Ad- 
ijocatione  Hispanicd,  whenever  he  has  occasion  to  speak  of 
them,  and  even  when  he  treats  of  the  laws  and  usages  by  which 
their  conduct  is  regulated.  This  is  so  very  absurd,  that  it  does 
not  deserve  a  serious  refutation;  for,  after  all,  what  those  men 
do,  is  done  under  the  sanction  of  public  authority.  In  this 
country  they  are  not  allowed  to  sail  without  a  commission 
from  the  states-general  or  the  admiral,  countersigned  by  the 
lieutenant  of  the  admiralty  of  their  particular  district,  nor 
without  having  first  made  oath  and  given  satisfactory  security 
that  they  will  not  do  any  injury  to  neutrals.  These  and  other 
regulations  are  to  be  found  in  the  Formce  Admiralitatum,r  and 

readers  whose  curiosity  may  lead  them  to  investigate  the  subject.  Our 
author  has  written  a  dissertation  upon  it,  in  his  Obscrv.  Jfur.  Jfom-  1. 
1.  c.  16.  T. 

*  ff.  de  Capt.  8c  Postlim.  Revers.  1.  G. 

+  Instructions  or  regulations  for  privateers 


TREATISE  ON  THE  LAW  OF  WAR.  141 

in  various  edicts,  which  have  been  made  on  the  subject  of 
privateers  whenever  foreign  powers  have  complained  of  their 
depredations.  But  as  those  edicts  are  in  every  body's  hands, 
I  think  it  unnecessary  to  give  here  a  more  particular  account 
of  the  regulations  which  they  contain. 

I  think  it  more  worth  while  to  inquire  whether  the  captains 
of  privateer  ships,  who  are  not  themselves  the  owners  of  the 
vessels,  may  enter  into  a  partnership  with  each  other  for  sharing 
in  the  prizes  which  they  may  each  separately  take?  If  they  are 
sent  out  merely  to  cruise  and  make  captures,  and  have  no 
further  authority,  it  is  certain  that  they  cannot  form  such 
partnerships  without  the  consent  of  their  owners,  otherwise, 
the  agreements  which  they  make  with  each  other  are  to  be 
considered  as  null  and  void. 

Let  it  not  be  objected,*  that  t>y  the  law  of  Solon  above- 
mentioned,  the  partnership  contracts  of  those  who  go  out  to 
plunder  are  declared  valid,  for  it  is  sufficiently  clear,  that  the 
legislator  only  meant  to  speak  of  those  who  are  their  own 
masters,  and  go  out  to  plunder  on  their  own  account.  So,  if  the 
owners  of  privateers  should  enter  into  partnerships  with  each 
other,  and  agree  that  their  prizes  should  be  equally  divided 
among  themselves,  such  agreements  as  well  as  every, other 
which  they  might  make,  would  undoubtedly  be  valid;  because 
every  one  may  dispose  of  his  own  property  as  he  thinks  fit: 
but  such  a  power  can  never  be  exercised  by  captains  of  private 
armed  ships,  unless  they  are  also  the  owners  of  them,  which  is 
hardly  ever  the  case. 

We  are  speaking  here  only  of  those  captains  of  privateers 
who  have  received  an  authority  from  their  owners  merely  to 
cruise,  and  who  exceed  it  by  entering  into  particular  agree- 
ments with  each  other.  There  was  once  a  cause  of  very  great 
moment  decided  upon  this  question,  and  which  was  even  car- 
ried to  the  court  of  revision.  Two  privateers,  one  belonging 
to  A  and  the  other  to  B  took  a  vessel  together,  and  after- 

*  It  ought  to  be  remembered,  that  in  Holland,  at  the  lime  when  our 
author  wrote,  the  imperial  law  of  Rome  was  the  common  law  of  the  land. 
This  will  sufficiently  account  for  the  constant  application  which  he  en 
deavours  to  make  of  its  rules  and  principles,  T, 


142  TREATISE  ON  THE  LAW  OF  WAR. 

wards  (as  B  alleged)  the  two  captains  agreed  together,  that 
any  future  prize  that  they  should  make,  should  be  divided 
between  them.  Afterwards  they  separated,  and  A's  vessel 
alone  took  another  prize,  which  B  insisted  should  be  divided 
between  them,  by  virtue  of  their  agreement.  A  denied  that 
the  agreement  extended  to  prizes  separately  made,  and  if 
it  did,  he  contended,  that  it  was  illegal  and  void.  And  so  it 
was  determined  by  the  inferior  court  at  Flushing.  But  B 
having  appealed  to  the  supreme  court,  the  cause  was  decided 
in  his  favour,  on  the  3d  of  March  1696,  and  that  judgment 
was  affirmed  by  the  court  of  review  on  the  4th  of  October 
1697.  To  the  same  effect  is  the  opinion  of  several  advocates 
in  Consilia  Belgica,*  and  a  similar  decision  was  given  by  the 
court  of  admiralty  of  Amsterdam,  in  1665. 

But  all  these  decisions,  except  that  of  the  court  of  Flushing, 
appear  to  me  to  have  been  erroneous,  and  I  think  that  the 
cause  ought  to  have  been  determined  in  favour  of  A.  I  have 
read  with  astonishment  in  the  acts  of  the  supreme  court,  in 
which  the  opinions  of  several  judges  of  that  tribunal  and  of 
the  court  of  review  are  inserted,  that  in  the  particular  case 
that  I  have  spoken  of,  the  only  question  that  was  agitated  was, 
whether  there  had  actually  been  an  agreement  between  the 
two  captains,  that  the  prizes  which  they  should  separately 
take  should  be  common  between  them,  or  whether  it  contem- 
plated merely  those  which  they  should  take  in  company;  but 
the  question  of  the  legality  of  the  agreement,  which  was  the 
first  that  suggested  itself  to  me,  does  not  appear  to  have  been 
even  thought  of. 

Admitting  that  it  had  been  expressly  agreed  between  the 
two  captains,  that  all  the  prizes  which  they  or  either  of  them 
should  take,  whether  jointly  or  separately,  should  be  equally 
or  proportionably  divided  between  them,  still  I  do  not  think 
that  A  was  at  all  bound  by  that  agreement.  He  had  sent 
out  his  vessel  at  his  own  risk,  for  the  sole  purpose  of  cruising 
and  making  captures;  he  had  given  no  other  instructions 
to  his  captain,  and  had  in  no  manner  authorized  him  to 

*  Vol.  4.  Consil  204. 


TREATISE  ON  THE  LAW  OF  WAR.  143 

enter  into  partnership  with  others,  which  he  might  have  done 
himself,  if  he  had  thought  proper.  His  captain,  therefore,  had 
no  authority  for  what  he  did,  and  in  that  case,  his  unauthorized 
act  could  not  bind  his  owner.  I  know,  that  if  .B's  vessel  had 
alone  made  a  prize,  it  would  not  have  been  difficult  to  persuade 
A  to  receive  his  proportion  of  it;  but  neither  would  it  have 
been  difficult  to  persuade  B  to  contend  for  the  same  principle, 
which  A  in  the  case  before  us,  insisted  upon.  The  first  vessel 
which  was  taken  by  the  two  armed  ships  together,  and  by 
means  of  their  joint  force,  was  a  prize  common  to  them  both, 
by  an  implied  partnership  arising  out  of  the  circumstances  of 
the  case;  but  it  was  not  so  with  the  second,  which  ./f  s  vessel 
took  alone,  and  which  he  ought  to  have  kept  exclusively  to 
himself,  if,  agreeably  to  my  opinion,  he  was  not  bound  by 
the  agreement  of  his  captain.  Therefore,  on  legal  principles, 
setting  aside  the  question  of  fact,  I  prefer  the  decision  of  the 
court  of  Flushing  to  all  the  others  that  have  been  given  on  the 
same  subject. 

I  proceed  to  a  question,  which,  in  my  opinion,  deserves  the 
most  serious  consideration;  it  is,  "  Whether,  if  one  or  more 
armed  ships  take  a  prize,  others  being  present,  but  not  fight- 
ing, it  is  to  be  divided  between  them?"  As  far  as  relates 
to  ships  of  war,  this  question  is  settled  by  positive  law;  for, 
there  is  a  decree  of  the  states-general,  of  the  28th  of  January 
1631,  by  which  it  is  enacted,  "  That  if  a  ship  of  war  shall 
attack  an  enemy,  another  ship  of  war  being  present,  may  join 
in  the  fight,  but  not  if  the  one  who  attacked  first,  shall  call  out 
that  he  has  no  need  of  assistance."  But  it  appears  to  me,  that 
this  law  was  made  specially  for  vessels  of  war,  otherwise, 
there  is  nothing  to  hinder  one  armed  vessel  from  joining 
another,  in  attacking  and  capturing  a  common  enemy  who  is 
not  yet  subdued. 

For  the  same  reason  I  consider  as  a  special  ordinance,  the 
sixth  section  of  the  Forma  or  regulation  of  the  15th  of  July 
1633,  expressly  made  for  the  privateers  commissioned  to 
cruise  against  the  Spaniards  in  America,  by  which  it  was 
ordered,  "  that  a  privateer  who  should  take  a  prize  jointly 
with  a  vessel  of  the  West-India  Company,  should  not  be  en- 


144  TREATISE  ON  THE  LAW  OF  WAR. 

titled  to  a  share  thereof,  unless  he  had  been  expressly  called 
to  the  assistance  of  the  company's  ship."  The  same  may  be 
said  of  the  seventh  section,  which  enjoins  upon  all  privateers, 
on  pain  of  forfeiture  of  ship  and  goods,  "  not  to  meddle  or 
interfere  with  the  captures  which  the  ships  of  the  company 
may  wish  to  make."  If,  however,  the  aid  of  a  privateer  ship 
should  be  called  for,  and  she  should  take  a  prize,  jointly  with 
a  vessel  of  the  West- India  Company,  there  is  no  doubt  but  that 
it  should  be  distributed  between  them,  in  proportion  to  their 
respective  size  and  force,  as  is  provided  by  the  sixth  section 
of  the  said  Forma:  and  if  their  force  is  equal,  then  the  prize 
is  to  be  equally  divided  between  them;  otherwise,  it  is  best  to 
observe  what  is  called  a  geometrical  proportion. 

What  shall  we  say,  if  one  or  more  ships  pursue  an  enemy's 
vessel,  and  one  of  them  perishes?  or  if  more,  perhaps,  are 
present,  but  one  alone  takes  the  prize,  while  the  others 
are  merely  spectators,  and  take  no  part  in  the  action?  The 
decree  of  the  28th  of  January  1631,  which  I  have  mentioned 
above,  directs,  that  in  such  a  case,  "  the  prize  is  to  be  divided 
between  all  the  vessels  of  war  which  have  pursued  her,  but 
that  she  which  has  actually  made  the  capture  is  to  have  the  pro- 
visions, small-arms-  and  plunderage"*  But  this  again  only 
concerns  ships  of  war,  of  whose  captures  the  states-general 
dispose  at  their  discretion;  for  otherwise,  if  the  case  concerned 
privateers  only,  I  would  rather  adjudge  the  whole  prize  to  him 
who  has  fought  and  conquered  the  enemy's  vessel,  how  many 
others  soever  might  have  pursued  her,  or  been  spectators  of 
the  contest.t 

*  The  precise  expression  used  in  the  original:  it  probably  means  every 
thing  susceptible  of  being  made  booty  of  war,  which  is  not  a  part  of  the 
vessel  or  of  her  cargo,  (properly  so  called.)  7'. 

f  This  opinion  of  our  author  accords  with  that  of  the  modern  writers 
who  have  treated  of  this  particular  subject.  "  Excepting,"  says  professor 
Martens,  "  the  case  of  an  association  among  privateers,  it  is  requisite,  in 
order  to  have  a  share  in  the  prize,  to  prove  the  having  contributed  in  some 
:nannrr  to  the  taking  of  it,  and  it  is  not  sufficient  to  have  been  found  in 
:ight  Mi,  tens  on  Captures,  §  32.  in  Jin.  p.  91.  £ngl,  trans  I.  It  appears  also 
*o  hf,  as  far  as  we  know,  generally  carried  into  practice  among  the  nations 


TREATISE  ON  THE  LAW  OF  WAR.  145 

There  are  those,  I  know,  who  are  for  admitting  all  who 
were  merely  present,  or  even  in  sight,  though  at  a  distance; 
but  this  cannot  be  admitted.  It  is  true,  that  the  mere  presence 

of  Europe,  with  respect  to  privateers,  though  in  the  case  of  vessels  of  war, 
governments  have  been  induced,  from  motives  of  policy,  to  adopt  a  different 
rule. 

The  ordinances  of  France  provide,  that  with  regard  to  vessels  of  war, 
"  tlrose  shall  be  considered  as  joint  captors  who  shall  have  found  them- 
selves together  and  in  sight  of  the  capture  at  the  time  of  its  being  made. 
Ord.of  the  15th  of  June  1757,  art.  10.  1  Code  des  Prises,  (edit.  1784)  p.  512. 
— Valin,  Traite  lies  Prises,  Append.  199.  Thus,  the  mere  circumstance  of 
being  in  sight  at  the  time  of  the  capture,  entitles  a  ship  of  <war,  by  virtue 
of  this  ordinance,  to  a  share  of  the  prize. 

But,  in  the  case  of  privateers,  another  ordinance  prescribes  the  opposite 
rule.  It  enacts,  "  that  none  shall  be  entitled  to  a  share  in  a  prize  taken 
from  the  enemy,  who  have  not  contributed  to  the  taking  of  the  vessel;" 
which  the  next  article  explains,  can  only  be  done  "  by  fighting,  or  by  making 
such  an  effort  as  may  have  compelled  the  enemy  to  surrender,  by  intimi- 
dating him  or  cutting  off  his  retreat."  Ord.of  the  27th  January  1706,  art.  I 
and  2.  1  Code  des  Prises,  282.  (same  edition.) — Valin,  ubi  supra,  p.  102. 

In  England,  the  same  distinction  appears  to  be  adopted.  Ships  of  war  are 
entitled  to  share  in  a  prize  from  the  mere  circumstance  of  having  been  in 
sight  at  the  time  of  the  capture,  the  ancient  general  rule  having  been  re- 
laxed or  modified  in  their  favour.  "  Formerly,"  says  sir  William  Scott, 
"  joint  capture  was  confined  to  cases  of  actual  co-operation,  and  when,  in  con- 
sequence of  frequent  litigations,  it  was  extended  to  constructive  assistance, 
for  the  purpose  of  preserving  harmony  and  good  understanding  among  the 
navy,  the  being  in  sight  became  the  principal  criterion.  The  Vryheid,  2  Rob. 
14.  Am.  edit. — In  a  later  case,  the  same  judge  determined,  in  a  contest 
between  a  king's  ship  and  a  privateer,  that  the  mere  being  in  sight  was 
sufficient  in  the  former  to  support  the  animus  capiendi,  and  entitle  her  to  a 
share  of  the  prize.  The  Flore,  5  Sob.  239.  Am.  edit. 

But,  on  the  contrary,  when  a  similar  controversy  arose  between  similar 
parties,  and  the  privateer  claimed  a  share  of  the  king's  ship's  prize,  because 
he  had  been  present  at  the  capture,  sir  William  Scott  decided,  "  that  the  mere 
being  in  sight  was  not  sufficient,  with  respect  to  privateers,  to  raise  the 
presumption  of  co-operation  in  the  capture:  they  clothe  themselves,  said  he, 
with  commissions  of  war  from  views  of  private  advantage  only;  they  are 
not  bound  to  put  their  commissions  in  use  on  every  discovery  of  an  enemy, 
and  therefore,  the  law  does  not  presume  in  their  favour,  from  the  mere 
circumstance  of  being  in.  sight,  that  they  were  there  with  a  design  of 
contributing  assistance  and  engaging  in  the  contest. "  VAmitic,  6  Rob.  264 
Am.  edit. 

We  have  not  been  able  to  find  a  single  case  in  any  of  Dr.  Robinson's 
Reports,  in  which  the  nuked  question  has  been  agitated  exclusively 

fT 


146  TREATISE  ON  THE  LAW  OF  WAR. 

of  others  may  have  been  the  cause  that  the  enemy  has  either 
surrendered  sooner  or  been  more  easily  subdued;  but  we  are 
not  to  consider  for  what  reason  the  vessel  was  taken  or  sur- 
rendered, but  who  took  her.  In  the  same  manner,  we  should 
not  admit  the  fort,*  town  or  fleet  in  whose  presence  a  capture 
was  made,  to  a  participation  in  the  prize,  even  though  it  might 
be  said  to  have  been  induced  to  surrender,  by  the  fear  which 
their  presence  excited.  On  the  other  hand,  it  is  clear,  that  if 
another  vessel  has  joined  the  captor  in  fighting  the  enemy, 
an  accidental  partnership  must  be  considered  as  having  taken 
place  between  them,  and  the  reason  of  the  thing  requires,  that 
what  has  been  taken  by  their  joint  efforts,  should  be  divided 
among  them  in  proportion  to  their  respective  strength.  Nor 
are  we  to  discriminate  in  such  a  case  between  the  different 
degrees  of  exertion;  for  that  would  be  too  difficult  in  practice; 
but  we  only  consider  whether  the  vessel  which  was  present 
at  the  capture,  did  actually  fight,  and  by  her  assistance,  con- 
tribute to  the  victory. 

Analogous  to  this  principle  is  the  doctrine  which  the  civil 
law  lays  down  on  the  subject  of  animals  force  naturce,  which  do 
not  become  the  property  of  those  who  pursue,  but  of  those 
who  actually  take  them.f 

1C?3  The  remainder  of  this  chaffer  is  so  entirely  and  exclu- 
sively local,  that  we  have  not  thought  it  worth  while  to  trans- 
late it. 

between  privateers.  In  one  case,  indeed,  a  share  in  a  prize  was  allowed  to 
one  of  that  description  in  competition  with  another,  from  the  circumstance 
of  his  being  in  sight  at  the  time  of  the  capture,  coupled  with  that  of  having1 
sailed  in  company  with  the  principal  captor,  and  the  capture  WPS  that  of  ;i 
defenceless  neutral  vessel,  in  which  no  fighting  was  required:  The  William, 
£5*  Mary,  4  Rob.  312.  Am.  edit.  But  we  have  not  discovered  one  in  which  the 
question  turned  singly  on  the  circumstance  of  being  in  sight,  at  the  time  oi 
the  capture;  therefore,  we  presume,  that  the  principles  established  m 
ISAinitie1,  would  prevail  in  such  a  case.  T. 

*  In  England,  land  forces  are  not  considered  as  entitled  to  share  in  :i 
capture,  unless  they  have  actually  assisted  and  co-operated  in  it.  Tin- 
Dordrecht,  2  Rob.  53.  Am.  edit.  T 

f  Inst.  De  Rer.  Divis.  §  13. 


TREATISE  ON  THE  LAW  OF  WAR.  147 


CHAPTER  XIX. 

Of  the  Responsibility  of  owners  of  Privateers. 

T>  Y  the  laws  of  our  country,  contained  in  the  Format  Ad- 
•*-*  miralitatum  and  several  edicts  of  the  states-general,  pri- 
vateers are  not  permitted  to  sail  from  our  ports,  without  giving 
security  to  answer  for  their  good  behaviour,  that  they  will  do 
no  injury  to  neutrals,  and  that  they  will  bring  their  prizes  to 
legal  adjudication,  by  the  court  of  admiralty  of  the  place  where 
the  security  is  given.* 

The  amount  of  this  security  has  varied.  It  was  at  first  re- 
quired to  be  in  ten  thousand  florins,  the  ship  and  the  cargo  at 
the  same  time  remaining  answerable  for  the  consequences  of 
the  privateer's  unlawful  conduct.  Afterwards  it  was  ordered, 
that  the  owner  should  give  security  in  twelve  thousand,  and 
the  captain  in  ten  thousand  florins,  the  owner's  bond  to  be  re- 
sorted to  in  the  first  instance,  and  if  it  should  not  prove 
sufficient,  then  recourse  might  be  had  to  that  given  by  the 
captain.f  But  by  the  last  edict  which  has  been  made  upon  this 
subject,:):  it  is  merely  provided,  that  security  shall  be  given  in 
the  sum  of  thirty  thousand  florins,^  and  the  law  does  not 

*  Form*  Admiral,  of  the  13th  of  August  1597.  §§  5.  69— of  the  15th  of 
July  1634.  §  5. 

f  Edicts  of  the  1st  of  April  1622— 9th  of  August  1624,  and  22d  of  October 
1627. 

\  Forma  of  28th  of  July  1765.  §  3. 

§  About  g>  12,000. — In  England,  the  security  given  by  a  privateer  is 
£  3000  (§13,320)  which  is  reduced  to  one  half  if  the  vessel  carries  less 
than  150  men.  Home's  Compendium  of  Admiralty  Lau-s,  p.  9. — In  France^ 
by  a  decree  of  the  2d  Prairial,  llth  year,  (22d  of  May  1803),  the  amount 
of  such  security  is  fixed  at  74,000  francs  (about  §14,095)  reduced  in  the 
same  manner  to  one  half,  if  the  privateer  is  navigated  by  less  than  150  men. 
Diet.  Univ.  de  Commerce,,  verbo  COURSE.  By  an  act  of  congress,  made 
flaring  the  partial  hostilities  between  the  United  States  and  France,  priva- 


148  TREATISE  ON  THE  LAW  OF  WAR. 

specify,  whether  by  the  captain  or  by  the  owners.  It  appears 
to  me,  however,  that  the  captain  is  the  person  who  is  to  give 
the  security,  because  it  is  he  who  is  to  bring  the  prize  into 
the  port  from  whence  the  vessel  has  sailed.  I  might  mention 
here  several  treaties  between  the  states-general  and  other 
powers,  by  which  it  has  been  stipulated,  that  captains  and 
owners  of  privateers  should  give  security  not  to  do  any  thing 
in  violation  of  existing  treaties,  but  as  they  do  not  enter  into 
further  details,  I  think  that  I  may  safely  pass  them  over. 

Thus  much  being  premised,  I  shall  proceed  to  inquire, 
whether,  if  a  privateer  has  made  an  illegal  capture,  the  damage 
suffered  in  consequence  thereof  is  to  be  repaired  by  the  cap- 
tain, his  securities,  or  the  owners  of  the  capturing  vessel, 
and  if  Jo  the  latter,  then  to  what  extent  they  are  liable? 
On  this  question,  the  Dutch  lawyers  have  answered,*  "  that 
if  the  captain  of  a  privateer  ship  has  wrongfully  taken  a 
neutral  vessel,  and  she  should  be  lost  in  consequence  of  his 
having  put  an  ignorant  prizemaster  on  board  of  her,  the  party 
injured  may  sue,  at  his  pleasure,  the  owner  of  the  privateer, 
the  captain,  his  securities  and  every  one  of  them,  until  he 
recovers  the  whole  amount  of  the  damage,  even  though  it 
should  by  far  exceed  the  value  of  the  vessel  that  made  the 
capture."  Let  us  now  consider  this  subject  in  detail. 

A  doubt  cannot  be  entertained  of  the  liability  of  the  captain 
to  the  whole  extent  of  the  damage  suffered  in  consequence 
of  his  unlawful  capture.  He  was  employed  for  the  purpose  of 
capturing  enemies,  not  neutrals;  if,  therefore,  he  has  made 
prize  of  the  latter,  he  has  exceeded  his  authority,  and  is 
consequently  liable  for  all  the  damage  which  the  neutral 
has  suffered.  This  principle  is  clearly  sanctioned  by  the  edict 
of  the  states-general,  of  the  1st  of  April  1622;  for,  after 

leers  were  directed  to  give  security  in  §14,000,  if  the  vessel  carried  more 
than  150  men,  and  in  half  that  sum  if  she  carried  less.  Act  of  the  9th  ofjuly 
1798,  $  4—4  Laws  U.  S.  165. 

In  Spain,  however,  according  to  their  prize  ordinances  of  1779  and  179G, 
(we  have  not  seen  that  which  was  probably  made  at  the  beginning  of  the 
present  war),  security  is  only  required  from  all  privateers,  without  dis- 
tinction, in  3000  rials  de  vellon,  equat  to  §1500.  T. 

*  Consil.  Belg.  vol.  4.  Consil  205. 


TREATISE  ON  THE  LAW  OF  WAR.  149 

directing  that  security  shall  be  given  by  the  captains  of  priva- 
teers, in  the  sum  of  ten  thousand  florins,  that  they  shall  bring 
their  prizes  into  the  port  from  which  they  shall  have  sailed, 
the  law  proceeds  and  says:  "  reserving,  nevertheless,  to  those 
who  shall  have  suffered  damage  by  any  unlawful  act  com- 
mitted by  the  captain  beyond  the  extent  of  his  commission, 
their  personal  action  against  the  said  captain  and  others  who 
shall  have  occasioned  the  said  damage." 

As  to  the  securities,  the  advocates  who .  subscribed  the 
opinion  above  mentioned,  appear  to  me  to  have  been  mis- 
taken; for,  those  securities  cannot,  I  think,  be  made  respon- 
sible for  the  whole  damage  suffered,  unless  they  have  bound 
themselves  to  that  extent;  but  if  they  have  merely  stipulated 
in  a  certain  fixed  sum,  as  is  usual  in  such  cases,  they  cannot 
be  made  liable  beyond  its  amount,  nor  can  they  be  called  upon 
to  answer  for  any  other  acts  than  those  for  which  they  have 
expressly  made  themselves  responsible;  as  for  instance,  if  they 
have  become  bound  for  the  carrying  of  the  prizes  into  a  parti- 
cular port,  and  the  prizes  have  been  actually  carried  thither,  I 
conceive  that  they  are  discharged,  and  that  it  is  nothing  to 
them,  whether  the  captures  have  been  lawfully  or  unlawfully 
made,  unless  they  have  bound  themselves  for  that  likewise. 
But  because  captains  of  privateers  are  in  general  so  poor,  that 
they  are  not  able  to  make  good  the  damage  which  they  have 
occasioned,  and  because  the  securities  are  not  in  general 
bound  beyond  a  certain  sum,  which,  after  being  compelled 
to  pay,  they  may  recover  back  by  an  action  against  the  owners, 
it  is  upon  the  owners  that  the  whole  burthen  falls  in  the  end. 
Let  us,  therefore,  as  to  them,  inquire  in  the  first  place,  whether 
they  are  liable  for  the  whole  of  the  damage  suffered,  or  whe- 
ther, as  in  the  actio  de  pauperie  and  actio  noxalisj*  they  are 

*  The  first  of  these  actions  was  given  by  the  Roman  law  against  the 
owner  of  a  quadruped,  which  had  done  an  injury  to  some  person,  by  kick- 
ing, biting,  &c.  which  was  called  pauperitm  facers.  See  on  this  subject,  the 
title  of  the  Digest,  si  quadrupes  pauperism  fecisse  dicatur.  Dig.  1.  9.  tit.  1. 

The  actio  noxalis  lay  against  the  master  of  a  slave  for  a  theft  or  other 
injury  done  or  committed  by  him.  Dig.  1.  9.  tit.  4.  De  noxalibus  actionibus. 

In  both  these  cases,  the  owner  or  master  was  discharged  by  delivering 
up  the  quadruped  or  the  slave..  T. 


150  TREATISE  ON  THE  LAW  OF  WAR. 

only  bound  to  the  amount  of  the  value  of  the  privateer  and 
her  appurtenances? 

A  question  of  this  kind  was  formerly  brought  before  the 
supreme  court  of  Holland.  Five  Dutch  privateers  had  unlaw- 
fully taken  a  Venetian  ship.  The  owners  of  the  captured  vessel 
at  first  instituted  a  suit  against  the  captains  of  the  privateers, 
and  obtained  a  judgment,  by  which  they  were  condemned  to 
restore  the  vessel  only,  without  damages.  But  as  the  sentence 
was  not  complied  with,  they  then  brought  an  action  against 
the  five  owners,  contending,  that  they  should  jointly  and  se- 
verally be  condemned  not  only  to  restore  the  vessel,  but  also 
to  pay  damages.  The  court,  by  their  decree  of  the  31st  of 
July  1603,  condemned  the  owners  jointly  and  severally,  to 
restore  the  vessel  and  her  cargo,  and  if  that  could  not  be 
done,  then  to  pay  their  appraised  value;  but  the  sentence 
contained  an  express  clause,  that  execution  of  it  should 
be  made  only  on  the  five  ships  which  had  made  the  cap- 
ture, and  that  the  owners  should  not  be  bound  beyond  their 
proceeds. 

On  the  strength  of  this  precedent,  respectable  lawyers  have 
given  their  opinion  to  the  same  effect,*  but  I  cannot  concur 
with  them,  because  I  think,  that  when  the  owners  of  a  priva- 
,teer  ship  put  a  captain  on  board  of  her  to  make  captures,  they 
/are  bound  for  the  whole  of  the  damage  that  he  may  occasion. 
The  master  who  captures,  in  consequence  of  an  authority  that 
he  has  received,  is  appointed  for  that  particular  purpose,  and 
he  who  appointed  him,  is  by  that  alone,  responsible  for  every 
thing,  good  or  bad,  that  he  may  do  in  the  execution  of  his 
trust.  Thus  we  give  the  actio  institoria]  against  the  proprietor 
of  an  inn,  who  has  appointed  an  innkeeper;  if  the  innkeeper 
makes  any  contract,  we  do  not  distinguish  in  what  manner  or 
with  what  intent  he  did  it;  and  thus  also  we  give  the  actio 
exercltoria\  against  the  owner  of  a  vessel  for  the  act  of  the 

'  Consil.  Holland,  vol.  3.  Consil  221. 
f  See  the  Digest,  1.  14.  tit.  3.  De  institorid  actione. 

|  Dig.  1.  14.  tit.  1.  De  exercitoria  actione.  This  title  will  be  found  trans- 
>Y  !;ited  into  English,  in  the  dmericaj!  Law  Journal,  vol.  ii.  p.  462.  T. 


TREATISE  ON  THE  LAW  OF  WAR. 

master,  provided  the  latter  acted  in  the  course  of  his  employ- 
ment as  such;  if  otherwise,  the  owner  is  not  bound,  as  Ulpian 
fully  demonstrates.*  The  appointment  is  the  sole  cause  why 
the  proprietor  of  the  inn  and  the  owner  of  the  vessel  are  re- 
sponsible, if  what  has  been  done  belonged  to  the  business  for 
which  the  authority  was  given,  and  not  to  some  other  one, 
different  from  it.  He  who  appointed  the  captain  of  a  privateer 
must  have  known,  that  his  business  was  to  make  captures,  and 
that  if  he  should  execute  it  improperly,  it  would  be  imputed 
to  the  owner  for  having  appointed  a  dishonest  or  an  unskilful 
captain.  If  the  master  having  borrowed  money  for  the  repairs 
of  his  vessel,  applies  it  to  his  own  use,  Ofilius  tells  us  very 
properly,  "  that  the  owner  is  liable  and  must  impute  it  to 
himself  that  he  employed  such  a  person."f  Wherewith  agrees, 
what  the  states-general  say  at  the  close  of  their  decree  of  the 
22d  of  October  1627,  "  that  the  owners  must  take  care  that 
they  employ  proper  captains." 

If  the  proprietor  of  an  inn  is  liable  for  the  acts  of  the  inn- 
keeper, and  the  owner  of  the  vessel  for  those  of  the  master, 
it  clearly  follows,  that  they  are  so  to  the  amount  of  their  whole 
property,  and  that  they  are  not  discharged  by  delivering  up 
the  inn  or  the  vessel.  I  do  not  remember  to  have  seen  this 
doctrine  contradicted  any  where,  nor  could  it  be  contradicted 
with  any  appearance  of  reason,  for  nothing  is  clearer,  than 
that  those  who  are  responsible  for  the  acts  of  others  are  so  to 
the  whole  extent  of  the  damage  which  they  may  occasion,  and. 
therefore  the  owners  of  a  privateer  are  bound  to  make  good 
in  toto,  the  damage  suffered  by  the  illegal  spoliations  of  their 
captain. 

The  laws  which  I  have  already  mentioned,  afford  strong 
arguments  in  favour  of  this  principle.  The  owners  of  priva- 
teer ships  are  bound  to  give  security,  formerly  in  twelve 
thousand,  now  in  thirty  thousand  florins,  that  no  injury  shall 
be  done  to  an  ally  or  neutral.  Now,  if  they  are  not  personally 
bound  to  a  farther  extent  than  the  value  of  the  vessel,  why  is 

*  ff.  de  exercit  act.  1.  1.  §.  1?, 
t  Ibid,  §  9. 


152          TREATISE  ON  THE  LAW  OF  WAR. 

a  specific  sum  required  which  may,  in  many  instances,  greatly 
exceed  that  value?  If  the  law  had  meant  that  the  value  of  the 
ship  should  fix  the  extent  of  their  responsibility,  it  should 
have  directed  her  to  be  valued,  and  ordered  security  to  be 
taken  in  the  precise  amount  of  the  valuation.  A  still  stronger 
argument  may  be  drawn  from  the  Forma  of  the  28th  of  July 
1705;  for,  by  that  law  the  owners  themselves  are  declared 
to  be  liable  for  the  damage  which  may  be  suffered  by  the 
wrongful  acts  of  the  privateer  ship,  and  every  thing  belonging 
to  her  equipment  is  made  subject  to  a  special  lien  or  tacit 
hypothecation  to  answer  for  that  damage.  Away,  then,  with 
the  doctrines  which  are  drawn  from  the  Roman  laws,  on  the 
subject  of  the  actio  de  pauperie  and  actio  noxalis.  These  do 
not  apply  to  the  present  question,  and  are  founded  on  quite 
different  principles. 

We  must  therefore  conclude,  that  the  supreme  court,  in  the 
case  above  mentioned,  gave  an  erroneous  sentence;  for,  if  the 
owners  of  the  privateer  ships  had  appointed  the  captains  who 
took  the  Venetian  vessels,  and  had  authorized  them  to  make 
captures,  they  were  bound  for  the  whole,  in  the  same  manner 
as  they  would  have  been  if  they  had  appointed  those  captains 
for  mercantile  purposes,  and  had  given  them  authority  to 
make  commercial  contracts.  Perhaps,  however,  it  will  be 
said,  that  the  report  does  not  expressly  state,  that  those  five 
vessels  were  privateers;  but  if  they  were  not  such,  it  cannot 
be  said,  that  the  owners  gave  authority  to  their  captains  to 
make  captures,  and  in  that  case,  I  would  wish  to  know,  why 
the  court  condemned  the  owners  to  the  restitution  of  the 
Venetian  ship  and  cargo,  and  awarded  execution  even  against 
the  vessels  of  those  owners,  and  thus  condemned  them  for  an 
act  which  was  not  within  the  authority  committed  to  their 
captains,  which  is  evidently  contrary  to  the  most  familial- 
principles  of  law.  In  such  a  case,  therefore,  the  owners  of  a 
vessel  cannot  be  made  in  any  manner  liable;  for  they,  indeed, 
have  put  the  master  in  their  place  and  stead,  but  merely  as  to 
the  business  which  they  have  ordered  him  to  transact,  and  if 
in  the  course  of  that  business,  the  master  had  committed  a 


TREATISE  ON  THE  LAW  OF  WAR.  153 

fault,  or  has  been  guilty  of  fraud,  they  are  bound  to  answer 
for  him,  otherwise  not.  If  I  give  to  a  carpenter  a  vessel  to 
repair,  and  he  gives  it  to  his  apprentice,  who,  with  one  of  his 
master's  own  tools,  happens  to  kill  somebody,  the  master 
will  not  be  at  all  answerable  for  it.  Therefore,  the  action 
against  owners  of  ships  cannot  be  assimilated  to  the  action  de 
pauperie,  except  so  far  as  it  makes  the  owner  of  a  horse  or 
mule  liable,  if  by  the  fault  of  his  driver,  the  animal  has  done 
some  damage,  but  the  analogy  of  that  law  does  not  reach 
farther. 

Agreeably  to  the  doctrines  which  I  have  contended  for, 
owners  of  vessels  will  clearly  not  be  liable,  if  they  have  not 
appointed  the  master  for  the  purpose  of  making  captures, 
otherwise  they  will  be  responsible,  not  merely  to  the  amount 
of  the  value  of  their  vessels,  but  to  that  of  their  stipulations, 
which  formerly  were  of  12,000  and  now  are  of  30,OOO  florins. 
In  addition  to  that,  those  who  have  suffered  the  damage,  may,  * 
by  virtue  of  the  decree  of  the  22d  of  October  1627,  sue  the  se- 
curity of  10,000  florins,  which  the  captain  is  obliged  to  give, 
that  he  will  bring  his  prizes  into  the  port  from  whence  he 
sailed,  for  so  the  decree  expressly  provides.  I  think,  however, 
that  such  a  demand  would  be  unjust,  unless  it  had  been  made 
known  to  the  securities,  at  the  time  of  their  entering  into 
the  stipulation,  that  they  would  be  exposed  to  that  liability, 
and  had  agreed  to  it;  for  if  they  had  simply  engaged,  as  is 
almost  always  the  case,  that  the  captain  should  return  with 
his  prizes  to  the  port  from  whence  he  sailed,  I  cannot  express 
how  unjust  it  appears  to  me,  to  make  them  liable  on  that 
security  for  any  other  cause;  as  I  have  already  hinted,  when 
speaking  on  the  subject  of  securities.*  But  if  all  that  I  have 
mentioned  is  not  sufficient  to  repair  the  damage,  what  shall 
we  say  in  such  a  case?  Are  the  owners  to  be  held  further?  I 
think  that  they  are,  until  they  shall  have  made  good  the  whole 
damage;  for,  it  is  clear,  that  a  pledge  or  security  does  not 
liberate  a  debtor,  unless  it  is  fully  sufficient  to  discharge  the 
d«bt.f 

*  Above,  p.  149. 

f  ff.  de  Distract.  Pign.  1.  9.  §  I 

f  U 


154  TREATISE  ON  THE  LAW  OF  WAR. 

Moreover,  if  the  vessel,  which  we  are  speaking  of,  be  not  a 
privateer,  that  is  to  say,  if  she  has  no  commission,  but  never- 
theless makes  captures  by  order  of  the  owners,  I  think  that 
the  same  thing  is  to  be  said  as  if  she  really  were  a  privateer; 
for,  the  right  arises  out  of  the  authority  and  the  appointment, 
and  it  is  nothing  to  those  who  have  suffered  the  damage, 
whether  they  are  injured  by  a  real  privateer  or  by  a  vessel 
not  provided  with  a  commission. 


TREATISE  ON  THE  LAW  OP  WAR.          155 


CHAPTER  XX. 

Of  Captures  made  by  vessels  not  commissioned. 

TT  is  properly  made  a  subject  of  inquiry,  whether,  if  a  ship 
-*•  not  commissioned  to  make  captures  is  attacked  by  an 
enemy,  and  in  her  defence,  or  from  some  other  justifiable  cause, 
takes  an  enemy's  vessel,  to  whom  in  such  case  the  prize  is  to 
belong?  Three  contending  parties  appear,  who  seem  to  have 
an  equal  claim  to  it,  and  in  favour  of  each  of  whom  many 
ingenious  arguments  may  be  adduced;  they  are  the  owner  of 
the  ship)  the  captain  and  mariners^  and  the  shipper  who  may 
have  taken  her  to  freight. 

On  behalf  of  the  owner  of  the  ship,  it  may  be  said,  that  he 
is  entitled  to  the  prize,  because  it  was  taken  with  his  own  ship 
and  guns,  and  because  the  captain  and  men  who  effected  the 
capture  were  in  his  employ,  and  bound  to  labour  for  his  be- 
nefit: it  ought  not  to  be  given  to  the  captain  nor  to  the 
mariners,  because  they  are  not  entitled  in  law  to  any  thing 
besides  their  wages,  nor  to  the  freighter,  because  he  only 
hired  the  vessel  for  the  transportation  of  his  merchandize, 
and  for  nothing  else. 

The  master  and  mariners^  however,  may  plead  that  the 
capture  was  achieved  by  their  prowess  and  with  the  danger  of 
their  lives,  and  therefore,  that  they  are  justly  entitled  to  the 
benefit  resulting  from  it:  that  with  respect  to  the  owner  of 
the  ship  and  the  freighter,  they  cannot  in  justice  claim  the 
prize,  because  they  had  not  hired  him  to  make  captures,  and 
the  contract  which  they  had  made  together,  was  for  pur- 
poses of  a  quite  different  nature. 

And  lastly,  on  the  part  of  the  freighter,  it  may  be  argued, 
that  he  had  hired  the  ship,  the  guns,  the  master,  the  mariners, 
and  the  right  to  their  labour,  not  only  for  the  transportation 


156  TREATISE  ON  THE  LAW  OF  WAR. 

of  his  merchandize,  but  also  for  the  defence  of  the  ship  for 
the  sake  of  the  goods  that  it  contained,  which  defence  is  to  be 
taken  with  every  thing  incident  to  it,  and  involves  the  right 
not  merely  of  repelling,  but  even  of  capturing  the  enemy,  to 
prevent  his  doing  any  injury.  That  on  these  grounds,  he  is 
justly  entitled  to  retain  the  prize,  and  it  ought  by  no  means 
to  be  given  to  the  owner  of  the  ship,  his  captain  or  mariners, 
who  all  ought  to  be  satisfied  with  the  stipulated  reward  for 
the  hire  of  the  vessel  and  their  labours. 

Such  are  the  arguments  which  may  be  made  use  of  in  sup- 
port of  each  of  the  above  opinions.  Before  I  proceed  to  state 
my  own,  I  must  premise,  that  there  exists  a  decree  of  the 
board  of  directors  of  the  West-India  company,  by  which  it  is 
provided,  "  that  fifty  per  cent,  of  the  proceeds  of  every  prize 
which  shall  be  taken  by  a  vessel  hired  out  on  freight,  shall  be 
paid  to  the  company."  This  decree  has  been  sanctioned  by 
the  states-general,  and  inserted  in  the  instructions  of  the  15th 
of  July  1 633,  for  privateers  cruising  in  the  American  seas. 

It  is  clear,  that  the  directors,  when  they  made  that  decree, 
attended  only  to  the  interest  of  their  company,  nor  had  the 
states-general  any  thing  else  in  view  when  they  gave  it  their 
sanction;  for,  they  made  no  rule  whatever  in  this  respect  for 
other  privateers  than  those  above  mentioned.  It  must,  there- 
fore, be  considered  as  a  special  law,  made  with  a  view  to 
particular  persons  and  circumstances,  and  which  is  not  to  pre- 
judice other  cases  to  which  it  is  not  directly  applicable. 

As  I  have  never  seen  a  general  law  upon  this  subject,  nor 
do  I  believe  that  any  exists,  the  question  is  to  be  decided  by 
the  light  of  reason  alone.  On  equitable  principles,  I  think  that 
the  prize  ought  to  be  adjudged  to  the  captain  of  the  capturing 
vessel  and  his  crew,  and  not  to  the  owners  or  freighters.  The 
latter,  indeed,  are  the  last  who  will  be  thought  of.  The  owner 
of  the  ship  appears  better  entitled,  but  still  I  would  prefer  to 
him  the  captain  and  crew.  Others,  however,  have  been  of  a 
different  opinion.* 

*  In  a  case  of  salvage,  which  bears  the  strongest  analogy  to  a  case  of 
unauthorized  capture,  (on  the  supposition  that  any  persons,  others  than  the 
sovereign  of  the  captor,  may  be  considered  as  entitled  to  the  prize,)  the  late 


TREATISE  ON  THE  LAW  OF  WAR.  157 

In  the  year  1667,  a  ship  sailing  under  a  license  from  the 
French  and  Dutch  West-India  company,  which  had  been 
granted  to  the  freighters,  captured  an  English  vessel  within 
the  company's  limits.  The  captors  determined  to  keep  the 
prize  with  them,  though  she  was  a  worse  sailer  than  their 
own  vessel,  because  on  consulting  together,  they  agreed,  that 
it  was  most  advisable  for  the  interest  of  the  owners  and 
freighters,  as  well  as  their  own,  that  she  should  be  carried 
into  one  of  the  West-India  islands,  where  it  was  expected  she 
would  sell  to  better  advantage.  The  question  then  occurred, 
to  whom  that  prize  was  to  be  adjudged?  The  lawyers  who 
were  consulted  on  that  question,  decided,  that  the  mariners, 
because  they  had  been  hired  at  a  fixed  salary  by  the  month, 
and  had  not  engaged  themselves  for  shares  of  prize-money, 
should  only  have  one  tenth  of  the  proceeds,  and  that  the  re- 
mainder should  be  equally  divided  between  the  owners  and 
freighters. 

I  do  not  know  upon  what  principle  those  gentlemen  allowed 
one  tenth  to  the  mariners,  nor  perhaps  did  they  know  them- 
selves. It  seems,  that  they  had  no  difficulty  as  to  the  one  half 
of  the  remainder,  which  they  gave  to  the  owners  of  the  ship ; 
and  therefore,  they  pass  it  over  without  assigning  any  reason 
for  it;  but  they  endeavour  to  justify,  by  argument,  the  allow- 
ing of  the  other  half  to  the  freighters.  They  contend,  that  it 
was  by  virtue  of  the  license  which  the  shippers  had  obtained 
from  the  West-India  company,  that  the  vessel  was  permitted 
to  navigate  to  the  West-Indies,  that  therefore  they  contributed, 
in  a  considerable  degree,  to  the  capture,  and  ought  not  to  be 
placed  in  a  worse  situation  than  the  owners  of  the  ship.  They 
say,  that  the  mariners  did  not  take  the  prize  for  the  benefit  of 
the  owners  of  the  ship  only,  but  also  for  that  of  the  owners 

judge  Winchester,  district  judge  of  Maryland,  allowed  one  ninth  part  of  the 
neat  salvage  to  the  owners  and  freighters  of  the  salvor-ship,  in  proportion 
to  their  respective  interests,  in  consideration  of  the  risk  to  which  their 
property  had  been  exposed.  The  supreme  court  of  the  United  States,  before 
whom  the  cause  was  ultimately  carried  by  appeal,  increased  the  allowance 
to  one  third.  The  remainder  was  distributed  among  those  who  had  been 
personally  instrumental  in  the  salvage.  The  JSlaircau,  2  Cranch's  Report*. 
240.  T. 


158  TREATISE  ON  THE  LAW  OF  WAR. 

of  the  merchandize,  and  that  they  declared  it  themselves,  in 
the  resolution  which  they  took,1  as  above  mentioned,  to  carry 
the  prize  into  one  of  the  West-India  islands,  for  the  best  ad- 
vantage of  the  owners  and  freighters.  To  these  they  add,  a 
variety  of  other  trifling  and  frivolous  arguments;  as  for  in- 
stance, that  the  possession  of  things  is  not  acquired  merely  by 
ourselves,  but  also  by  those  persons  who  are  employed  by  us; 
that  the  owners  of  the  ship  were  not  present  any  more  than, 
the  freighters,  when  th«  capture  was  made,  and  that  if  the 
ship,  instead  of  capturing,  had  been  captured,  the  owners  of 
the  goods  on  board  would  have  suffered  a  considerable  loss. 

But  I  am  not  at  all  convinced  by  such  arguments  as  these, 
nor  by  those  which  I  have  mentioned  above,  in  favour  of  the 
owners  of  the  capturing  ship;  for,  it  is  clear,  that  a  prize  by 
whomsoever  taken,  belongs  solely  to  the  captors,  unless  they 
acted  by  the  command  or  under  the  appointment  of  another 
person.  The  only  question,  therefore,  is,  zvho  took  the  prize? 
and  it  is  manifest,  in  this  case,  that  it  was  the  master  and 
mariners,  and  that  they  did  not  do  it  by  the  command  or 
direction  of  another.  Their  services  were,  indeed,  hired,  but 
for  the  mere  purpose  of  carrying  goods,  and  for  nothing  else: 
Whatever  advantage,  therefore,  may  arise  from  the  carrying 
of  the  goods,  ought  to  be  for  the  benefit  of  those  who  have 
made  use  of  the  agency  of  others  for  that  purpose;  but  neither 
they,  nor  the  owners  of  the  ship  are  entitled  to  any  share  of 
the  prize,  because  the  mariners  were  not  employed  to  make 
that  capture,  but,  while  they  were  attending  to  a  business  of  a 
quite  different  nature,  to  the  mere  navigation  of  the  vessel, 
fortune  threw  something  else  in  their  \vay,fortuna  aliud  dedity 
as  Tryphonius  elegantly  argues,  in  an  analogous  case.*  For 
the  same  reason,  in  the  case  of  a  labourer,  who,  digging  the 
ground,  had  found  a  treasure,  I  gave  it  as  my  opinion,  that 
he  was  entitled  to  it.f  The  condition  of  the  labourer  in  that, 
and,  for  the  same  reason,  of  the  mariner  in  the  present  case, 
does  not  extend  farther  than  the  business  for  which  they 
were  hired.  Whatever  is  out  of  it,  that  is  to  say,  whatever  is 

*  ft',  de  Adquir.  Rer.  Dom.  1  63.  §  3. 
|  Obs  Jur.  Rom.  1.  2.  c.  4. 


TREATISE  ON  THE  LAW  OF  WAR.  159 

foreign  to  the  subject  of  their  contract,  they  are  alone  to 
suffer  or  enjoy,  whether  it  be  profit  or  loss. 

This  case  clearly  comes  within  the  general  doctrine  of 
principal  and  agent.  Now,  the  agent  shall  certainly  not  im- 
pute to  his  principal,  that  he  was  robbed  by  highwaymen,  lost 
his  property  by  shipwreck,  or  that  he  or  his  family  being  taken 
sick,  he  had  spent  a  sum  of  money  which  had  been  put  into 
his  hands  for  a  particular  purpose;  for,  such  occurrences  are 
more  properly  to  be  imputed  to  accident  than  to  the  agency, 
as  Paulus  justly  observes.*  Such  losses  as  these  follow  the 
person  of  the  agent;  while  on  the  other  hand,  it  is  natural,  as 
Paulus  also  very  correctly  says,  that  "  those  gains  and  advan- 
tages which  happen  by  occasion  of  the  agency,  should  follow 
it."f  If  A  has  sent  B  to  carry  something  to  6?,  and  B,  in  the 
way,  has  found  a  sum  of  money,  or  has  extorted  something 
from  a  highwayman  who  attempted  to  rob  him,  no  one,  cer- 
tainly, whose  mind  is  not  very  weak,  shall  think  that  the  money 
which  B  has  so  extorted,  belongs  to  A,  although  the  things 
which  he  was  sending  to  C  might  have  been  endangered  by  it. 
He  did  not  order  B  to  find  money,  nor  to  extort  any  thing 
from  highwaymen,  but  to  carry  some  articles,  which  he  did 
carry,  and  his  agency  being  thus  fulfilled,  A  has  nothing  more 
to  ask  of  him. 

The  arguments  of  the  advocates  on  the  subject  of  the  pre- 
sent question  are  really  trifling.  The  license  which  the  freighters 
had  obtained  from  the  West-India  company  could  not  avail 
them  to  make  prizes,  but  only  to  navigate  in  the  American 
seas.  Nor  are  we  to  cavil  about  the  words  of  the  resolution 
of  the  mariners  above  mentioned,  when  they  are  susceptible  of 
so  many  different  interpretations.  I  think  that  they  had  no 
other  object  in  view  than  to  retahi  the  prize  with  them,  to 
whomsoever  it  might  belong,  whether  to  the  owners,  the 
freighters  or  themselves,  or  that  the  words  rather  signified, 
that  they  meant  to  divide  it  into  three  parts,  and  to  give  one 
to  each  of  the  said  parties.  Or  perhaps  (saving  the  decree  of 
the  board  of  directors)  they  might  have  believed  that  the 

*  ff.  Mamlat.  1.  26.  §  6. 
t  ff.  De  Re£.  Jur.  1.  10. 


160          TREATISE  ON  THE  LAW  OF  WAR. 

prize  belonged  to  them  alone;  as  if  the  vessel  was  laden  with 
provisions  or  other  necessaries  of  life,  which  they  themselves 
were  in  need  of,  and  thus  might  be  useful  to  the  owners  of 
the  ship  and  goods,  by  enabling  them  to  prosecute  the  voyage, 
or  they  might  have  had  various  other  motives  of  the  same 
kind.  And  who  will  dare  to  suppose,  that  those  mariners 
weighed  and  considered  so  particularly  the  words  of  their  re- 
solution, and  that  if  the  prize  did  belong  to  them,  they  wished 
to  abandon  their  claim  to  the  whole  of  it?  Nay,  if  they  had 
even  believed  that  it  did  not  belong  to  them,  but  to  the  owners 
and  freighters,  who  would  not  excuse  their  simple  honesty? 
He,  who,  thinking,  that  what  is  his  own  property  belongs  to 
another,  gives  it  up  to  him,  is  not  to  suffer  by  it.  Let  not  an 
error  in  point  of  law,  be  objected  to  those  good  mariners,  since, 
as  well  from  the  resolution  itself  as  from  other  circumstances, 
it  appears  that  they  made  no  final  determination,  and  it  is  suf- 
ficiently clear,  that  they  never  had  an  intention  to  give  up  any 
right  to  which  they  might  be  entitled.  It  is  true,  however, 
that  if  they  had  fought  more  than  was  necessary  for  their  de- 
fence, and  the  ship  or  goods  had  suffered  by  it,  they  would 
have  been  bound  to  an  indemnity  by  the  terms  of  their 
contract. 

On  these  principles,  a  cause  was  formerly  decided  by  the 
court  of  Brussels,  which  I  think,  bears  a  strong  analogy  to 
the  present  case:  A  person  had  lent  a  horse  to  the  command- 
ant of  a  corps  of  cavalry,  to  fight  with;  the  court  were  of 
opinion,  that  the  lender  of  the  horse  was  not  entitled  to  a  share 
of  the  booty  which  the  officer  took  with  it.  I  fully  approve  of 
the  legality  of  this  sentence,  though  it  has  been  doubted  by 
some,  and  Zouch*  refers  us  to  a  contrary  opinion,  given 
by  Petrinus  Bellus;\  there  was,  however,  in  that  case,  much 
more  equity  in  favour  of  awarding  a  part  of  the  booty  to  the 
officer,  as  it  was  nothing  to  him,  whether  the  person  to  whom 
he  lent  his  horse,  should  fight  or  not.  And  yet,  he  had  no 
more  right  to  the  prize,  than  one  who  lends  his  net  to  another, 
has  a  right  to  the  fish  that  he  takes  with  it. 

*  Be  Jure  Fee.  p.  2.  §  8.  Q.  17. 

-  DC  Re  Milit.  P.  4.  tit.  8.  n  «. 


TREATISE  ON  THE  LAW  OF  WAR.  161 

It  will  be  said,  perhaps,  that  I  am  wasting  words  on  an  idle 
and  useless  question,  as  it  is  unlawful  to  make  captures  with- 
out a  commission  from  the  states-general,  or  the  admiral,  and 
so  far  from  the  one  who  takes  a  prize  without  such  a  commis- 
sion, being  entitled  to  it,  he  is  rather  to  be  considered  as  a 
pirate,  agreeably  to  the  principles  which  I  have  above  con- 
tended for.  But  this  does  not  follow  in  every  case.  Grotius 
very  properly  says,*  that  "  a  private  capture  is  acquired  to  a 
private  captor,  and  there  can  be  no  doubt,  that  a  prize  taken 
under  circumstances  of  necessity,  by  non-commissioned  vessels, 
belongs  to  those  who  have  taken  it."  I  know,  that  the  authority 
of  Pujfendorjf]  is  adduced  to  the  contrary,  but  he  does  not 
contradict  this  doctrine;  for  he  speaks  of  those,  who,  without 
any  authority,  go  out  for  the  express  purpose  of  making  cap- 
tures, not  of  those,  who,  being  attacked  by  an  enemy,  turn 
upon  him  in  their  own  defence,  and  these  are  the  persons  that 
I  am  speaking  of.  If,  in  such  a  case,  it  is  denied,  that  it  is 
lawful  to  take  the  enemy's  property,  it  must  be  denied  also, 
that  it  is  lawful  to  despoil  him,  who  otherwise  will  despoil 
us,  and  there  must  be  an  end  to  the  right  of  self-defence. 
And  yet,  every  declaration  of  war  not  only  permits,  but  ex- 
pressly orders  all  good  and  loyal  subjects,  to  injure  the  enemy 
by  every  possible  means,  that  is  to  say,  not  only  to  avert  the 
danger  with  which  the  enemy  threatens  you, but  to  capture:):  and 
strip  him  of  all  his  property.  The  case  is  different  with  those 
who  sail  out  on  cruises,  without  a  commission,  and  without 
complying  with  the  previous  requisites  of  the  law,  because 
they  are  prohibited  from  doing  so  by  various  edicts  of  the 
states-general.  But  how  can  he  be  expected  to  have  a  com- 
mission, who,  sailing  merely  for  the  sake  of  trade,  meets  an 
enemy  who  attacks  him,  and  captures  him  in  his  own  defence? 
If  Grotius  and  Puffendorjf  had  explained  themselves  in  this 

*  De  Jure  B.  ac  P.  1.  3.  c.  6.  §  10. 

f  De  Jure  N.  and  G.  1.  8.  c.  6.  §  21. 

f  We  have  not  meant  to  include  such  justifiable  captures  by  non-com- 
missioned vessels,  in  our  definition  of  piracy,  above,  p.  128.  We  have, 
therefore,  used  in  it  the  word  depredations,  as  implying  illegality,  ex  ,r» 


. 

162  TREATISE  ON  THE  LAW  OF  WAR. 

manner,  those  who  now  find  fault  with  both,  would  have  had 
no  occasion  to  do  it.* 

*  In  France  and  Great-Britain,  prizes  taken  by  non-commissioned  vessels 
belong  to  the  lord  high  admiral,  as  a  droit  of  his  office.  1  Valins  Comment. 
79. — British  order  in  council,  of  the  6th  of  March  1665-6,  in  a  note  to  the  case 
of  the  Rebecca,  1.  Rob.  193.  Amer.  edit.  No  distinction  is  made,  whether  the 
captor  did  or  not  make  the  capture  in  his  own  defence,  or  from  some 
other  justifiable  motive.  But,  as  in  Great-Britain  the  office  of  high  admiral 
is  vested  in  the  king,  and  has  for  a  long  time  been  executed  by  commis- 
sion, suitable  rewards  are  given,  at  the  discretion  of  the  government,  in 
meritorious  cases.  And  we  presume,  that  the  government  of  France  is  not 
backward  in  displaying  its  liberality  on  similar  occasions.  T. 


TREATISE  ON  THE  LAW  OF  WAR.  163 


CHAPTER  XXI. 

Of  Insuring  enemy's  property. 

to  the  contracts  of  purchase,  sale  and  hire,*  there 
is  none,  at  present,  in  more  frequent  use,  in  commercial 
countries,  than  that  of  insurance.  It  was,  however,  so  en- 
tirely unknown  to  the  ancients,  that  no  trace  of  it  is  to  be 
found  in  the  volumes  of  Roman  jurisprudence.  The  reason 
probably  is,  that  commerce  was  not  at  that  time  carried  on  to 
the  same  extent  that  it  is  at  this  day.  Perhaps,  also,  the  fleets 
of  the  Romans  secured  their  merchant  vessels  from  depre- 
dations at  sea,  or  the  vast  extent  of  their  empire,  bordering  on 
all  the  seas  which  their  navigators  were  in  the  habit  of  fre- 
quenting, dispelled  all  fears  of  enemies.  Nor  was  there  so 
much  to  be  feared  as  there  is  at  present  from  the  dangers 
of  the  ocean,  as  their  vessels  generally  sailed  coastwise,  pru- 
dently keeping  within  a  small  distance  from  the  shore,  and 
did  not  venture  out  to  sea  in  the  winter  months,!  whereas 
our  ships  at  present  sail  out  to  any  distance,  and  we  trust  them 
at  all  times  and  in  all  seasons  to  the  treacherous  element, 
without  knowing  whither  the  fates  may  carry  them. 

I  have  read,  however,  in  Sueiomus^s  life  of  the  emperor 
Claudius,  that  during  a  time  of  great  scarcity,  when  the  people 
abused  him,  and  shewed  him,  by  way  of  reproach,  fragments 
of  stale  bread,  he  not  only  gave  great  encouragement  to  the 

*  Locatlo,  hiring  or  letting  to  hire.  At  the  civil  law,  the  signification  of  this 
word  is  very  extensive;  locatlo  operum,  is  when  a  man  hires  out  or  engages 
his  labour  to  another  for  a  specific  reward;  locatlo  rerum,  is  the  hiring  or 
letting  to  hire  or  farm  (as  we  call  it)  of  property  of  any  kind,  whether  real, 
personal  or  mixed.  T. 

f  Ex  die  tertio  Iduum  Novembris,  usque  ad  diem  sextum  Iduum  Martii 
mana  dauduntur.  The  seas  are  closed  from  the  eleventh  of  November,  to 
the  second  of  March.  Veget.  de  Re  Milit.  1.  4.  Justinian's  code  permits  na- 
vigation from  the  first  of  April  to  the  first  of  October.  Cod  de  Nattfrag.  \.  ".  7 


164          TREATISE  ON  THE  LAW  OF  WAR. 

building  of  ships,  but  proposed  certain  profits  to  the  merchants, 
taking  upon  himself  the  risk  of  any  loss  that  might  be  occa- 
sioned by  the  violence  of  the  winds  and  seas.  This  was  a 
species  of  insurance,  which  is  nothing  else  than  an  engage- 
X(ment  for  the  safety  of  another's  property,  by  which  the  owner 
is  liberated  from  the  risk,  which  is  assumed  by  the  insurer, 
in  consideration  of  a  certain  prsemium.*  Claudius,  indeed, 
assumed  upon  himself  the  dangers  of  the  sea,  but  he  did  it 
gratuitously  and  not  for  the  consideration  of  a  pramium  or 
reward;  nor  did  he  undertake  to  bear  the  losses  which  might 
be  suffered  from  pirates;  therefore,  I  say  that  it  was  only  a 
species  of  insurance.! 

I  have  premised  a  definition  of  the  contract  of  insurance, 
in  order  to  make  it  appear,  that  the  reason  of  war  absolutely 
requires  the  prohibition  of  insurance  on  the  ships,  merchandize 
or  other  property  of  enemies.  For,  what  else  is  assuming  the 
risk  to  which  their  property  may  be  exposed,  than  promoting 
their  maritime  commerce?  The  object  of  insurance  is,  that 
maritime  trade  may  be  carried  on  with  the  greatest  possible 
profit,  and  the  least  possible  loss.  Hence,  the  states-general, 
on  the  1st  of  April  1622,  while  we  were  at  war  with  the 
Spaniards,  issued  an  edict,  annulling  all  insurances  made  and 
to  be  made  by  Dutch  subjects  on  Spanish  property,  and  laying 
a  fine  of  one  hundred  pounds,  Flemish,  on  all  who  should  act 

*  The  definition,  which  our  author  gives  of  the  contract  of  insurance,  is 
very  similar  to  that  which  had  been  given,  long  before  him,  by  Roccus, 
which  is  still  the  most  logical  and  comprehensive  of  all  that  have  ever  been 
offered.  "  Insurance,"  says  that  able  writer,  in  the  excellent  translation  of 
his  two  treatises,  Con  ships  and  freight  and  on  insurance  J,  lately  published  at 
Philadelphia,  by  Mr.  J.  R.  Ingcrsoit,  "  is  a  contract  by  which  a  person  as- 
sumes upon  himself  the  risk  to  which  the  property  of  another  may  be 
exposed,  and  binds  himself,  in  consideration  of  a  certain  premium,  to  in- 
demnify him  in  case  of  loss."  Ingersoll's  Roccus,  p.  85.  T. 

f  For  a  full  and  complete  view  of  all  that  is  to  be  found  in  the  works  of 
the  ancients  which  may  be  considered  as  having  any  relation  to  the  subject 
of  insurance,  see  Mr.  Park's  introduction  to  his  System  of  the  Lai»  of 
Marine  Insurances,  which  is  fraught  with  a  great  deal  of  information  on  this 
particular  subject,  from  whence  Mr.  Part  justly  concludes  with  our  author, 
,  that  the  contract  of  insurance,  as  at  present  understood,  was  not  known 
to  the  ancient  Creels  and  Rotnam.  T. 


TREATISE  ON  THE  LAW  OF  WAR.  165 

to  the  contrary.  This  was  extremely  proper,  because,  in  all 
declarations  of  war,  the  subjects  are  ordered  to  do  as  much 
harm  as  they  can  to  the  enemy,  and  therefore,  it  follows,  that 
they  are  prohibited  from  doing  them  any  good.  Such  are  the 
rules  prescribed  by  the  general  law  of  war,  and  the  states- 
general  did  no  more  than  declare  that  law  during  the  war  with 
Spain,  by  their  edict  of  the  2d  of  April  1559. 

It  may,  perhaps,  be  said,  that  such  insurances  are  productive 
of  more  profit  than  loss  to  the  insurers,  and  therefore,  that  they 
are  more  advantageous  to  us  than  to  the  enemy.  But  this  may 
prove  a  very  fallacious  reasoning,  for  the  result  of  insurances 
on  enemy's  property,  is,  in  a  national  point  of  view,  very  un- 
certain, nor  does  experience  sufficiently  enable  us  to  judge  of 
their  effects  upon  the  nation  at  large;  while  on  the  other  hand, 
it  is  very  certain  that  the  enemy  thereby  acquires  the  means 
of  extending  his  maritime  commerce.  It  therefore,  follows, 
that  what  is  certainly  useful  to  our  enemy,  and  almost  as  cer- 
tainly threatens  our  own  destruction,  is,  on  every  principle,  to 
be  prohibited.* 

*  Trading  with  enemies,  and  insurances  on  enemy's  properly  have  been 
prohibited,  from  the  earliest  times,  in  almost  every  country  of  Europe. 
England  and  Holland  are  the  only  ones  that  are  known  to  have  pursued,  for 
a  while,  a  different  policy.  The  ordinance  of  Barcelona,  made  in  1484, 
expressly  forbids  such  insurances  to  be  made,  directly  or  indirectly,  no 
fuxen  esser  aseguradas  directamen  o  indirectamen.  Cleirac,  Us  (Sf  Coutumes 
de  la  Mer,  p.  118. — Consol.  del  Mar.  ("Boucher's  Fr,  transl.)  vol.  ii.  p.  717. 
§  1540.  Le  Guidon,  a  very  old  treatise  on  maritime  law,  declares  it  to  be 
unlawful  to  trade  with  enemies,  and  to  make  insurance  on  enemy's  property, 
c.  2.  art.  5.  in  Cleirac,  p.  117.  Mr.  Valin  mentions  several  ancient  ordinances 
of  France  to  the  same  effect,  which  shew,  that  the  law  was  always  so  under- 
stood in  that  country.  But  he  observes  that  the  English,  during  the  seven 
year's  war,  were  in  the  habit  of  insuring  the  property  of  the  French,  even 
ivhen  bound  from  a  French  port  to  a  French  colony,  or  from  one  French  port  to 
another.  "  By  this  means,"  says  he,  "  one  part  of  the  nation  restored  to  us, 
by  the  effects  of  the  contract  of  insurance,  what  tiie  other  took  from  us  by 
the  law  of  war."  2  Valin' s  Comm.  p.  32. 

It  is  certain,  .that  in  England,  not  only  during  that  war,  but  during  that 
which  immediately  preceded,  and  that  which  immediately  followed  it, 
that  is  to  say,  during  a  period  of  near  half  a  century,  trading  with  enemies, 
and  insurances  on  enemy's  property  were  carried  on  to  a  great  extent,  and 
Vfere  sanctioned  by  the  decisions  of  the  tribunals  of  that  country.  In  the 


166  TREATISE  ON  THE  LAW  OF  WAR. 

This  reason  alone  would  have  been  sufficient  to  justify  the 
said  edict  of  the  1st  of  April  1622,  but  it  also  adverts  to  a 
consequence  that  would  follow,  if  those  insurances  should  be 

year  1749,  lord  Hardwicke  considered  an  insurance  as  legal,  which  had  been 
made  on  an  English  vessel  that  had  been  sent  to  Ostend,  to  be  neutralized, 
and  from  thence  to  trade  with  the  enemy,  under  cover  of  the  neutral  flag. 
He  said,  that  "it  had  never  been  determined,  that  insurance  on  enemy's 
ships,  during  the  war,  was  unlawful;  and  that  it  might  be  going  too  far  to 
say,  that  all  trading  with  enemies  was  prohibited  by  law,  for  the  general 
doctrine  would  go  a  great  way,  even  when  English  goods  were  exported, 
and  none  of  the  enemy's  imported,  which  might  be  very  beneficial." 
Henklev.  Royal  Exch.  Ass.  Comp.  \  Ves.  317. 

During  the  American  war,  insurances  of  this  description  were  neither 
less  frequent  nor  less  favoured  by  the  English  tribunals.  Planch*  \.  Fletcher, 
was  the  case  of  a  Swedish  ship,  laden  for  French  account,  and  bound  directly 
from  London  to  Nantz,  with  a  simulated  destination  for  the  neutral  port  of 
Ostend.  Doug.'25\. — Thellttsson  v.  Ferguson,  was  an  insurance  on  a.  French  ship, 
which  had  sailed  under  French  convoy  from  a  French  colony  to  a  port  in 
France.  Ib.  361.  In  both  these  cases,  the  property  insured  had  been  con- 
demned by  the  English  court  of  admiralty,  but  the  insurances  were,  never- 
theless, held  valid;  and  thus,  the  courts  of  common  law  sanctioned  and  en- 
couraged  the  same  acts  which  the  courts  of  admiralty  punished.  In  the  former 
case,  it  was  objected,  that  in  time  of  war,  the  exportation  of  enemy's  pro- 
perty, even  in  neutral  bottoms,  was  illegal,  and  that  an  insurance  upon  such 
goods  was  void;  but,  lord  Mansfield,  overruled  the  objection.  "  It  does  not 
appear,"  said  he,  "  that  the  goods  were  French  property;  an  Englishman 
might  be  sending  his  goods  in  a  neutral  ship.  But  it  is  indifferent  whether 
they  were  English  or  French;  the  risk  insured,  extends  to  all  captures." 
Doug.  252,  253.  It  is  but  justice,  however,  to  observe,  that  sir  William 
Scott  has  expressed  doubts  of  the  correctness  of  the  report  of  this  decision. 
The  Hoop,  1  Rob.  182.  Am.  ed.  But,  in  a  subsequent  case,  Gist  v.  Mason, 
which  was  decided  on  by  the  court  of  king's  bench,  in  the  year  1786, 
lord  Mansfield  appears  to  have  been  even  astute,  to  establish  his  favourite 
doctrines,  and  to  give,  as  much  as  possible,  a  legal  sanction  to  the  trade 
of  British  subjects  with  enemies,  and  to  their  insurances  on  enemy's 
property. 

This  was  not  a  case  of  insurance  on  property  belonging  to  enemies,  but 
on  English  property  shipped  on  board  of  a  neutral  vessel,  employed  in  the 
1  rade  between  Ireland  and  the  enemy's  colonies.  The  report  does  not  state, 
whether  the  insurance  was  on  the  ship  and  goods,  or  on  the  vessel  only, 
hut  it  could  not  have  made  any  material  difference;  because,  if  it  was  un- 
lawful for  British  subjects  to  ship  their  merchandize  to  the  French  colonies, 
the  means  could  not  be  legal,  when  the  end  was  prohibited. 

In  this  case,  lord  Mansjield  is  reported  to  have  said:  "  This,  on  the  face 
of'i1,  \K  the  case  of  a.  neutral  vessel.  It  is  no  where  laid  down,  that  policies  on 


TREATISE  ON  THE  LAW  OF  WAR.  167 

considered  as  lawful.  The  very  property  taken  by  our  own  sub- 
jects from  the  enemy,  might  be  claimed  by  the  underwriters. 
And  why  should  it  not,  if  their  contract  was  legal?  It  is  well 

neutral  property,  though  bound  to  an  enemy's  port,  are  void.  And,  indeed,  I 
know  of  no  cases,  (except  two,  both  of  which  are  short  notes,)  that  prohibit 
a  subject  trading  with  the  enemy.  By  the  maritime  law,  trading  with  an 
enemy,  is  cause  of  confiscation  in  a  subject,  provided  he  is  taken  in  the 
act,  but  this  does  not  extend  to  neutral  vessels"  1  Term  Rep.  85.  Lord 
Mansfield  here  appears  to  have,  as  much  as  possible,  kept  the  cargo  out  of 
view,  and  to  have  endeavoured  to  palliate  the  illegality  of  its  destination, 
by  holding  up  the  neutrality  of  the  vessel. 

As  to  the  expediency  of  permitting  such  insurances,  he  expressed  himself 
in  a  clear  and  decided  manner.  "  It  is,"  said  he,  "  for  the  benefit  of  the 
country,  to  permit  these  contracts,  upon  two  accounts;  the  one,  because  you 
hold  the  box,  and  are  sure  of  getting  the  premiums,  at  least,  as  a  certain 
profit — the  other,  because  it  is  a  certain  mode  of  obtaining  intelligence  of 
the  enemy's  designs."  Park  on  Ins.  316.  6th  edit. 

But,  during  the  last  war,  the  tribunals  of  England  entirely  discarded  their 
former  ill  judged  policy,  and  restored,  to  all  appearance,  on  a  firm  basis, 
the  ancient  principle  of  the  law  of  nations.  In  the  year  1794,  a  death  blow 
was  given  to  insurances  on  enemy's  property,  in  the  cases  of  Brandon  v. 
Nesbitt,  and  JSristow  v.  Towers.  6  Term  Rep.  2.3.  35.  Nothing,  however,  was 
finally  decided,  as  to  the  legality  of  trading  with  an  enemy,  until  sir 
William  Scott,  in  the  year  1799,  gave  his  able  and  luminous  judgment,  in 
the  case  of  the  Hoop,  Cornells,  1  Rob.  165.  Am.  ed.  which  was  soon  followed 
by  that  of  the  court  of  king's  bench,  in  Potts  v.  Bell.  8  Term  Rep.  548,  in 
which  it  was  held  to  be  illegal,  on  general  principles,  for  a  subject  to  trade 
with  an  enemy.  We  observe  with  pleasure,  that  these  decisions  were 
principally  founded  on  the  authority  of  the  irresistible  arguments  of  our 
author  in  the  present  chapter;  it  is  not  the  only  instance  in  which  he  has  had 
the  honour  of  giving  the  law  to  the  tribunals  of  the  great  nations  of  Europe. 

That  lord  Mansfield  made  the  well  known  principles  of  the  law  of  nations 
yield  to  his  favourite  policy,  is  at  present  too  well  authenticated  to  be 
denied.  "  On  the  legality  of  these  insurances,"  says  Mr.  Justice  Buller,  "  I 
never  could  get  him  to  reason.  He  never  went  beyond  the  ground  of  ex- 
pediency." Bellv.Gilson.  1  Bos.  &  Pul.  354.  "  He  always,"  says  lord  Alvanley, 
"  entertained  doubts  upon  the  law,  and  endeavoured  to  keep  out  of  sight,  a 
question  which  might  oblige  him  to  decide  against  what  he  thought  for  the 
benefit  of  the  country."  Furtado  v.  Rogers.  3  Bos.  &  Put.  197- 

From  this  and  other  instances  which  might  be  adduced,  it  is  evident,  that 
the  law  in  England  is  made  to  subserve  the  great  political  interests  of  the 
nation,  and  varies  with  the  notions  of  policy  that  are  entertained  at  different 
times.  It  behoves  us,  therefore,  to  consider  how  far  we  are  bound  implicitly  ' 
to  adopt  the  rules  laid  down  by  English  judges,  in  cases  which  may  affect 
their  political  concerns,  on  the  mistaken  supposition  that  they  are  founded 
on  the  principles  of  the  ancient  common  law.  The  situation  and  interests  of 


168  TREATISE  ON  THE  LAW  OF  WAR. 

known,  that  property  insured,  belongs  in  a  certain  manner  to 
the  insurers,  and  they  are,  in  a  great  degree,  identified  with  the 
owners,  as  appears  by  the  printed  policies  that  are  in  every 
body's  hands.  If,  then,  the  underwriters  could  thus  claim 
enemy's  property,  after  it  had  been  lawfully  captured,  it  would 
not  only  occasion  a  considerable  loss  to  the  captors,  but  it 
would,  (as  the  edict  justly  observes,)  deter  them  from  fitting 
out  vessels  to  cruise  against  the  enemies  of  the  state.  Surely, 
there  can  be  nothing  more  directly  in  opposition  to  the  law  of 
war.* 

America  and  Great-Britain  are  known  to  differ  in  many  essential  points,  and 
therefore,  the  rules  by  which  the  one  is  led  to  prosperity,  may  prove  greatly 
injurious  to  the  other.  We  have  had  frequent  occasion  to  observe,  that  many 
of  their  belligerent  principles  are  entirely  unsuited  to  our  neutral  situation, 
and  this  is  so  true,  that  the  state  legislatures  have  been  obliged  to  make 
laws  to  counteract  the  effects  of  the  application  of  British  doctrines,  as  has 
lately  been  done  in  Pennsylvania,  with  respect  to  the  condusiveness  of  the 
sentences  of  foreign  prize  courts.  But,  we  observe  also,  with  regret,  that  in 
some  of  the  states  they  have  gone  so  far  as  to  prohibit  the  reading  or  citing, 
in  courts  of  justice,  of  British  adjudications  of  a  date  posterior  to  the 
American  revolution  It  is  paying  a  poor  compliment  to  the  patriotism  and 
intelligence  of  the  judges  who  grace  the  benches  of  our  superior  tribunals, 
and  a  degrading  tribute  to  the  presumed  superiority  of  British  jurists,  td 
suppose,  that  their  opinions  would  obtain  an  undue  influence  or  ascendency 
over  those  of  our  own  countrymen.  To  the  sound  discriminating  minds  of 
our  enlightened  judges,  (aided  from  time  to  time  by  special  legislative 
acts,)  it  might  safely  have  been  left  to  decide,  how  far  the  principles 
adopted  by  the  tribunals  of  Great-Britain  are  consonant  with  our  own 
national  policy,  which  undoubtedly  is  as  much  a  part  of  our  law,  as  that 
of  the  English  is  a  part  of  theirs.  T. 

*  It  does  not  seem  to  follow,  because  the  loss  suffered  by  the  capture  of 
enemy's  property  may  be  recovered  from  the  underwriters,  that  the  property 
itself  may  be  recovered  by  the  insurers  from  the  captors;  but  the  effect  of 
such  insurances  is  certainly,  as  Valin  happily  expresses  it,  that  the  nation 
•which  permits  them,  restores  viith  one  hand  what  it  takes  with  the  other. 

We  cannot  help  adverting  here  to  what  might  be  considered  as  another 
striking  instance  of  injudicious  policy,  if  we  were  not  assured  from  high 
authority,  that  it  originated  in  misapprehension  and  mistake.  We  mean  to 
speak  of  the  doctrine  of  conclusireness,  as  applied  to  the  sentences  of 'foreign 
prize  courts,  which  has  so  often  frustrated,  to  the  great  loss  of  the  parties  in- 
sured, the  insurances  made  in  England  upon  neutral  property.  The  ships  and 
cargoes  of  neutrals  are  insured  there  for  high  war  premiums,  against  capture 
and  its  attendant  confiscation  by  the  enemies  of  Great-Britain;  but,  as  the  law 
istinderstood  in  that  country,  (and  surely  the  unfortunate  neutral  is  not  aware 


TREATISE  ON  THE  LAW  OF  WAR.  169 

So  far,  no  fault  can  be  found  with  the  said  edict  of  the  1st 
of  April  1622.  But  I  have  discovered  a  supplement  to  it,  of 
the  13th  of  May  in  the  same  year,  by  which  it  was  declared, 
that  the  edict  should  only  operate  on  those  insurances  which 
were  or  should  be  made  after  its  publication;  as  if  this  was  a 
proper  subject  for  the  application  of  the  rules  of  the  Roman 
code,  on  the  subject  of  ex  post  facto  laws.*  It  would  seem, 

of  it,  otherwise  he  would  not  subscribe  to  such  an  unequal  contract),  if 
condemnation  takes  place,  the  sentence  is  in  most  cases  considered  as  con- 
clusive evidence  of  the  property  insured  being  enemy's  property,  and  the 
innocent  neutral  being1  thus  convicted  of  fraud,  the  insurer  is  allowed  to 
retain  the  praemium  and  to  pay  no  loss.  In  this  manner,  premiums  to  an 
immense  amount,  have  been  earned  by  English  underwriters,  without  risk, 
and  neutrals  have  paid  their  money  without  being  compensated  for  their 
losses.  Such  are  the  effects  of  the  celebrated  doctrine  of  collusiveness  of 
foreign  sentences,  so  justly  reprobated  by  two  of  the  greatest  law  characters 
of  our  age,  lords  Thurlmv  and  Ellenborough;  Donaldson  v.  Thompson,  1  Campb. 
N.  P.  Rep.  429.  These  consequences  were  not  contemplated,  we  are  sure, 
by  the  respectable  judges  of  England;  but  they,  nevertheless,  certainly  fol- 
lowed, and  at  last  it  was  found  necessary  to  tolerate  the  evasion  of  that  law 
by  a  special  clause  annexed  to  policies  of  insurance;  (Lothian  v.  Henderson, 
3  Bos.  &  Pul.  499.)  otherwise,  the  British  insurance  offices  would  have  been 
entirely  deserted  by  neutrals.  And  yet  it  is  supposed  to  be  founded  on  a 
principle  of  the  law  and  comity  of  nations,  which,  we  would  presume,  it  does 
not  belong  to  Individuals  to  dispense  with. 

It  is  much  to  be  wished,  that  this  fatal  doctrine  may  be  exploded 
throughout  the  United  States,  as  it  is  in  Pennsylvania  and  Ne-w-Tork.  While 
our  property  is  more  than  ever  exposed  to  the  captures  of  belligerent 
cruisers,  and  to  the  unjust  condemnalisns  of  foreign  tribunals,  the  effects' 
of  such  a  principle  must  be  to  deprive  our  citizens  of  the  benefit  of  in- 
surance in  such  cases,  and  thus  to  further  the  views  of  those  powers  who 
may  wish  to  check  our  commercial  career.  We  do  not  receive  immense 
sums  in  premiums  from  foreigners;  American  property,  principally,  is  insured 
in  our  offices,  and  those  insurances  ought  to  be  made  as  effectual  as  pos- 
sible, that  the  risk  and  the  loss  may  be  divided  among  many,  instead  of 
falling  upon  a  few.  It  is  true,  that  we,  also,  can  evade  the  doctrine  in 
question,  by  a  special  clause;  but  a  law  which  requires  to  be  evaded  is  a  snare 
to  the  unwary,  and  is  necessarily  a  bad  law. 

We  beg  leave  to  refer  the  reader  on  this  subject  to  the  able  and  con- 
clusive opinion  of  the  honourable  judge  Cooper,  of  Pennsylvania,  delivered 
in  the  high  court  of  errors  and  appeals  of  this  state,  in  the  case  of  Dempsey 
v.  The  Insurance  Company  of  Pennsylvania,  and  published  with  an  excellent 
introduction,  by  Mr.  Dallas;  Philadelphia,  Byrne,  1810.  T. 

*  Leges  &  constitutionesfutiiris  certum  est  dareformam  negotiis,  non  adfacta 
prtettrita  revocari-  nisi  nominatim  £-  de  prxterito  tcmpore,  &  ad/ntc  pendenti&us 

t  Y 


170  TREATISE  ON  THE  LAW  OF  WAR. 

that  the  states-general  considered  that  the  insurance  of  ene- 
my's property  was  legal,  unless  it  was  prohibited  by  an  express 
law,  otherwise,  there  was  no  reason  for  not  annulling  those 
insurances  which  were  made  before  the  publication  of  the 
edict,  as  well  as  those  which  were  made  afterwards.  The 
edict  had  been  very  properly  expressed  in  general  terms,  and 
had  made  no  such  exception;  and,  as  it  did  not  enact  a  new 
law,  but  was  merely  declaratory  of  the  law  of  war,  the  supple- 
ment is  rather  to  be  considered  as  an  oversight  of  the  legisla- 
ture, than  as  a  law  actually  binding.  So  much  of  the  edict, 
indeed,  as  inflicts  a  penalty,  may  very  properly  have  been  re- 
stricted to  future  cases;  but  not  so  the  prohibition  itself:  unless, 
perhaps,  we  should  say,  that  the  insurance  of  enemy's  pro- 
perty had  before  prevailed  to  such  a  considerable  extent,  that 
it  had  acquired  the  force  of  an  ancient  custom  or  usage. 
Nevertheless,  even  if  there  should  be  a  great  many  instances 
of  insurances  of  that  description,  I  would  not  take  it  to  be 
such  an  usage  as  is  considered  to  have  the  force  of  law, 
unless  it  should  be  confirmed  by  an  uninterrupted  series  of 
judicial  decisions. 

The  states-general,  therefore,  acted  in  conformity  to  the 
law  of  nations,  when,  on  the  31st  of  December  1657,  they 
made  an  edict,  prohibiting  the  insurance  of  the  goods  of  the 
Portuguese^  with  whom  we  were  then  at  war;  but  I  cannot  say 
the  same  thing  of  a  clause  which  they  added  to  it,  by  which 
they  extended  the  prohibition  to  the  insurance  of  any  mer- 
chandize -whatever,  going  to  or  coming  from  the  Portuguese 
dominions:  for,  if  those  goods  belonged  to  subjects  of  the 
states-general,  or  to  allies  or  neutrals,  there  was  no  reason  to 
prohibit  their  being  insured,  as  the  trade  with  Portugal  was 
not  prohibited,  except  as  far  as  related  to  contraband  of  war. 
To  these,  therefore,  the  prohibition  ought  to  have  been  re- 
stricted; in  other  respects,  the  freedom  of  insurance  ought  to 
have  been  co-extensive  with  the  freedom  of  trade.  The  states- 


7'cgotiis  cantum  sit.  The  laws  are  only  to  affect  future  and  not  past  trans- 
actions, unless  made  with  an  express  reference  to  them.  Cod.  tie  Legib.  \.  7- 

T. 


TREATISE  ON  THE  LAW  OF  WAR. 

general,  however,  on  the  9th  of  March  1665,  being  at  war 
with  England^  issued  a  similar  edict,  by  which  they  pro- 
hibited the  insuring  of  any  merchandize  going  to  or  coming 
from  the  English  dominions.  They  did  the  same  thing  on 
the  9th  of  March  1689,  during  the  war  with  France,  and 
thus  interrupted  the  lawful  commerce,  not  only  of  our  own 
subjects,  but  of  foreigners.*  It  is  thus,  that  edict-makers 
content  themselves  with  transcribing  those  of  a  prior  date, 
and  when  once  an  error  (though  ever  so  contrary  to  the 
law  of  nations)  has  crept  into  one  of  them,  it  is  copied, 
without  reflection,  into  every  new  law  that  is  made  on 
the  same  subject,  and  no  one  troubles  himself  about  rec- 
tifying it. 

Upon  the  whole,  it  appears,  even  from  subsequent  edicts  of 
the  states-general,  that  it  is  not  lawful  to  make  insurance  on 
enemy's  property;  and  because  the  thing  is  of  daily  occurrence, 
I  wish  the  prohibition  had  been  inserted  in  all  the  general  and 
special  laws  which  the  states-general  have  enacted  from  time 
to  time,  respecting  that  species  of  contract.  I  wish  also,  that 
Straccha,  Santerna,  and  other  semi-barbarians, f  who  have 
written  on  the  subject  of  insurance,  had  left  this  question 
entirely  untouched,  and  had  contented  themselves  with  ob- 
serving, that  unlawful  merchandize,  as  for  instance,  contra- 

*  It  would  seem,  however,  that  although  it  is  not  lawful  for  a  belligerent 
nation  to  obstruct  the  commerce  of  neutrals  with  their  enemies,  yet  they 
may  lawfully  prohibit  insurances  on  such  trade  within  their  own  dominions, 
and  that  such  a  prohibition  is  no  more  than  the  lawful  exercise  of  the  right 
of  municipal  legislation.  T. 

f  Our  author  is  much  too  severe  on  those  ancient  writers,  to  whom  we 
are  indebted  for  the  first  methodical  treatises  on  commercial  and  maritime 
laio.  Nor  has  he  spared  that  venerable  work,  the  Cotisolato,  (above,  p.  44), 
which  has  been  the  foundation  of  almost  every  subsequent  maritime  code. 
Far  from  joining  in  his  opinion,  we  wish  that  those  books  were  more  fre- 
quently read  and  consulted  than  they  are;  they  would  be  found  to  contain 
many  excellent  principles,  which,  in  our  modern  times,  have  been  unfor- 
tunately too  much  lost  sight  of.  See  the  excellent  decree  of  judge  Davis, 
(district  judge  of  Massachusetts),  on  an  important  question,  respecting 
mariner's  wages,  the  solution  of  which  has  been  afforded  him  by  a  text  of 
the  Cunsolato.  2  Amer.  Laio  Journ.  359.  //  Consol.  c.  127.  and  in  M.  Boucher1-.: 
translation,  c.  130.  vol.  ii.  p.  195.  §  321.  ?', 


172  TREATISE  ON  THE  LAW  OF  WAR. 

band  of  war,  could  not  be  insured.  For  my  part,  I  shall  express 
in  a  few  words,  what  I  conceive  to  be  the  law  upon  this  sub- 
ject. I  think,  that  it  is  not  lawful  to  insure  any  ships  or  goods 
which  are  liable  to  capture  by  the  law  of  war;  but  as  to  those 
which  cannot  be  made  lawful  prize,  I  see  no  reason  why  they 
should  not  be  insured. 

I  shall  conclude  with  adverting  to  what  some  of  our  writers 
have  said  on  the  subject  of  insuring  goods  which  are  liable  td 
condemnation.  Grothis*  is  of  opinion,  that  he  who  has  insured 
contraband  goods,  not  knowing  them  to  be  such,  is  not  bound 
to  pay  the  loss.  Others  have  said,f  that  he  who  has  subscribed 
a  policy  in  general  terms,  is  released  from  his  engagement,  if 
the  owner  of  the  goods  insured  turns  out  afterwards  to  have 
been  an  enemy;  for,  enemy's  property  is  never  considered  as 
being  included  in  a  general  description,  but  must  be  expressly 
declared  and  made  known  to  be  such,  to  the  underwriter.^ 

*  Consil.  Holland,  vol.  3.  Cons.  175. 

f  Ibid.  vol.  2.  Consil.  322. 

\  A  very  correct  general  rule  has  lately  been  introduced  in  England,  upon 
this  subject.  "  Whenever,"  says  Park,  "  an  insurance  is  made  on  a  voyage 
expressly  prohibited  by  the  common,  statute  or  maritime  law  of  the  country, 
the  policy  is  of  no  effect.  Park  on  Ins-  307-  6th  ed.  Even  though  the  in- 
surance be  made  in  general  terms,  a  clause  or  proviso,  excluding  the  pro- 
hibited risk,  is  always  considered  as  ingrafted  in  the  policy.  Furtado  v. 
Rogers,  3  Bos.  ISf  Pul.  191.  Kellner  v.  Le  Mesurier,-  Brandon  v.  Curling,  4 
East,  396.  410. 

According  to  the  above  decisions,  the  capture  of  neutral  vessels  by  the 
cruisers  of  Great-Britain  or  her  co-belligerents,  is  considered  as  a  prohibited 
risk,  "  because,"  says  lord  Ellenborough,  "  it  is  repugnant  to  the  interest  of 
the  state,  and  has  a  tendency  to  render  the  British  operations  by  sea 
ineffectual."  Kellner  v.  Le  Mesurier,  4  East,  402.  This  is  certainly  correct, 
on  the  ground  of  state  policy;  but,  another  reason,  founded  on  the  broad 
basis  of  the  law  of  nations,  is  afforded  by  our  own  judge  jfohnson,  (one  of  the 
judges  of  the  supreme  court  of  the.  United  States,  and  presiding  judge  of 
the  courts  which  compose  the  sixth  federal  circuit:)  "  a  neutral,"  says  he, 
"  who  is  captured  for  having  violated  his  neutrality,  is  considered  by  the 
belligerent  as  an  enemy  waging  an  individual  war  against  his  nation,  and 
is  abandoned  by  his  own  government  as  such."  Rose  v.  Himely,  Bee's 
Admiralty  Reports,  322.  It  follows,  from  this  principle,  that  all  risks  of 
capture,  by  the  armed  vessels  of  the  nation  to  which  the  insurer  belongs, 
may  be  properly  classed  \vitlnn  the  general  prohibition  against  insuring 


TREATISE  ON  THE  LAW  OP  WAR.  173 

But,  I  think,  that  even  though  it  be  expressly  mentioned  and 
designated  in  the  policy,  yet,  when  enemy's  property  or  con- 
traband goods  are  insured,  the  insurance  is  void,  and  it  de- 
pends on  the  will  of  the  parties  to  fulfil  or  not,  the  contract 
which  they  have  entered  into;  but  no  judicial  recovery  can  be 
had  thereon. 

enemy's  property.  And,  indeed,  according  to  the  formula  which  is  used  at 
present  by  the  courts  of  admiralty  of  Great-Britain,  whatever  may  be, 
in  point  of  fact,  the  specific  ground  of  condemnation  of  a  neutral  vessel  or 
cargo,  no  other  reason  is  assigned  in  the  decree,  but  that  it  belonged,  at 
the  time  of  capture,  to  the  enemies  of  that  country.  Home's  Compend.  148. 

T. 


174          TREATISE  ON  THE  LAW  OF  WAR. 


CHAPTER  XXII. 

Of  enlisting  Men  in  foreign  countries,  and,  incidentally ,  of 
Expatriation. 

|"  ENTER  upon  the  discussion  of  a  question  which  has  been, 
-••  and  is  still,  the  cause  of  much  disturbance  in  many  of  the 
kingdoms  and  states  of  Europe:.  Whether  it  is  lawful  to  enlist 
men  in  the  territory  of  a  friendly  sovereign?  Let  it  not  be 
imagined,  that  I  mean  to  contend,  that  it  is  lawful  to  entice 
away  soldiers,  by  bribes  or  solicitations,  from  the  service  of 
another  prince,  in  order  to  enlist  them  into  our  own.  I  know 
too  well,  that  those  who  promote  desertion,  are  not  less  guilty, 
and  do  not  deserve  a  less  punishment  than  the  deserters  them- 
selves;* and,  indeed,  among  some  nations,  that  crime  has  even 
been  construed  into  high  treason.  The  question  which  I  am 
about  to  investigate,  is  of  a  quite  different  nature.  It  is,  whe- 
ther a  prince  may,  in  the  territory  of  a  friendly  sovereign, 
enlist  private  individuals  who  are  not  soldiers,  and  make  use 
of  them  in  war  against  his  own  enemies?  It  is  certain,  that 
if  a  prince  prohibits  his  subjects  from  transferring  their 

*  The  important  question  respecting  the  delivering  up,  or  as  it  is  called, 
the  extradition  of  deserters  from  one  country  to  another,  has  been  the  sub- 
ject of  much  controversy  in  America  as  well  as  in  Europe,  and  is  not  yet  at 
rest.  It  has  been  but  slightly  touched  upon  by  some  of  the  writers  on  the  law 
of  nations,  and  by  others  not  at  all.  Vattel  says  nothing  upon  it.  Hubner 
lays  it  down  as  a  general  principle,  that  "  a  neutral  sovereign  may  receive 
in  his  dominions,  and  even  among  the  number  of  his  subjects,  deserters 
from  either  of  the  belligerent  armies,  unless  he  is  obliged  to  deliver  them 
up  by  a  special  convention,  called  a  cartel."  1  Hubn.  De  la  Saisie,  t^c.  p.  39. 
But  Galiani  distinguishes  and  contends,  that  if  the  army  from  which  the 
soldiers  desert  is  on  the  neutral  territory  at  the  time  when  the  destrtion 
takes  place,  as  for  instance,  if  it  has  been  allowed  the  right  of  passage, 
the  neutral  sovereign  is  bound  to  deliver  up  those  who  have  deserted  their 
colours  within  his  dominions;  otherwise,  it  will  be  considered  as  a  violation 
of  the  laws  of  hospitality.  Gallant,  De'  doveri,  &c.  1.  1.  c.  8.  §  4.  T. 


TREATISE  ON  THE  LAW  OF  WAR.  175 

allegiance  and  entering  into  the  army  or  navy  of  another 
sovereign,  such  sovereign  cannot,  with  propriety,  enlist  them 
into  his  service;  but,  where  no  such  prohibition  exists,  (as  is 
the  case  in  most  of  the  countries  of  Europe),  it  is  lawful, 
in  my  opinion,  for  the  subject  to  abandon  his  country,  migrate 
into  another,  and  there  serve  his  new  sovereign  in  a  military 
capacity. 

It  is  lawful,  I  repeat  it,  if  there  is  no  law  that  prohibits  it, 
for  a  subject  to  change  his  condition,  and  transfer  his  allegi- 
ance from  one  sovereign  to  another.  The  writers  on  public 
law  are  all  of  this  opinion;  nor  does  Grotius  dissent  from 
them,  but  he  adds,  that  expatriation  is  not  lawful  among  the 
Muscovites;  and  we  know,  that  it  is  unlawful  also  among 
the  English  and  Chinese.  We  know  likewise,  that  Louis  XIV. 
king  of  France,*  declared  by  an  edict  of  the  13th  of  August 
1669,  that  those  of  his  subjects  who  should,  without  the  per- 
mission of  the  government,  emigrate  from  his  dominions, 
with  the  intention  never  to  return,  should  be  punished  with 
the  forfeiture  of  life  and  goods.  Before  that  period,  it 
was  lawful  to  emigrate  from  France,  and  it  is  so  wherever 
the  country  is  not  a  prison.t  And  if  it  is  lawful  for  a  subject 

*  This  edict  was  made  with  a  view  to  the  Protestants.  It  was  in  the  same 
year  that  Louis  the  XIV.  began  to  violate  the  edict  of  Nantz,  by  abolishing 
the  chainbres  mi-parties,  tribunals  consisting  of  judges  of  both  religions, 
which  that  edict  had  established.  Henault,  Abrege  de  fHist.  de  Fr.  sub  anno 
1669.  He  foresaw  the  immense  emigration  which  its  final  repeal  would 
produce,  and  thus  vainly  endeavoured  to  prevent  it.  T. 

•j-  By  the  first  constitution  of  Pennsylvania,  made  on  the  28th  of  September 
1776,  it  was  declared,  (c.  1.  $  15.),  "  that  all  men  have  a  natural  inherent 
right  to  emigrate  from  one  state  to  another  that  will  receive  them." 
1  Dalian's  Laws  of  Penn.  append,  p.  54.  The  present  constitution  merely 
provides,  (art.  9  §  25),  "  That  emigration  from  the  state  shall  not  be  pro- 
hibited." 3  Dallas's  Laws  of  Penn.  p.  xxii. 

The  question,  "  whether  it  is  lawful  for  a  citizen  to  expatriate  himself," 
has  been  brought  several  times,  and  in  various  shapes,  before  the  supreme 
court  of  the  United  States.  It  was  made  a  point,  incidentally,  in  the  case  of 
Talbot  v.  Jansen,  mentioned  above,  p.  136.  In  that  case,  it  appeared  to  be 
the  opinion  of  the  court,  that  expatriation  is  lawful,  provided  it  is  effected  at 
such  time,  in  such  manner,  and  under  such  circumstances  as  not  to  endanger 
the  peace  or  safety  of  the  United  States.  "  The  cause  of  removal,"  said 
judge  Patterson,  "  must  be  lawful,  otherwise,  the  emigrant  acts  contrary  to 


176  TREATISE  ON  THE  LAW  OF  WAR. 

to  pass  under  the  dominion  of  another  prince,  it  must  be  so 
likewise  for  him  to  seek  the  means  of  procuring  an  honest 

his  duty,  and  is  justly  charged  with  a  crime.  Can  that  emigration  be  legal 
and  justifiable,  which  commits  or  endangers  the  neutrality,  peace  or  safety 
of  the  nation  of  which  the  emigrant  is  a  member?"  3  Dallas's  Reports,  153 — 
"  That  a  man,"  said  judge  Iredell,  "  ought  not  to  be  a  slave;  that  he  should 
not  be  confined  against  his  will  to  a  particular  spot,  because  he  happened 
to  draw  his  first  breath  upon  it;  that  he  should  not  be  compelled  to  continue 
in  a  society  to  which  he  is  accidentally  attached,  when  he  can  better  his 
situation  elsewhere;  much  less  where  he  must  starve  in  one  country,  and 
may  live  comfortably  in  another,  are  positions  which  I  hold  as  strongly  as 
any  man,  and  they  are  such  is  most  nations  of  the  world  appear  clearly  to 
recognize.  The  only  difference  of  opinion  is,  as  to  the  proper  manner  of  ex- 
ercising this  right."  Ibid.  162.  Judge  Gushing  concurred  in  the  general  prin- 
ciple, that  expatriation  is  lawful,  and  approved  of  the  doctrine  laid  down 
on  this  subject  by  Heineccius,  Elem.  jfur.  Nat.  and  Gent.  1.  2.  c.  10.  "  But,'' 
said  he,  "  the  act  of  expatriation  should  be  bond  Jide,  and  manifested  at 
least  by  the  emigrant's  actual  removal,  with  his  family  and  effects,  into 
another  country."  Ibid.  169.  In  the  case  then  before  the  court,  no  such 
removal  had  taken  place. 

In  that  of  Murray  v.  The  Charming  Betsy,  it  was  decided,  that  a  citizen 
of  the  United  States  who  has  bona  fide  expatriated  himself,  is  to  be  con- 
sidered as  an  alien  for  commercial  purposes.  One  Shattuck,  a  natural  born 
citizen  of  the  United  States,  had  for  many  years,  resided  with  his  family, 
and  had  been  naturalized  in  the  Danish  island  of  St.  Thomas.  It  was  ob- 
jected to  him,  that  he  had  traded  from  that  island  with  the  French  colonies, 
in  fraud  of  an  act  of  congress,  by  which  all  trade  was  interdicted  to  the 
citizens  of  the  United  States,  with  the  dominions  of  France.  But,  the  court 
were  of  opinion,  "  that  an  American  citizen  may  acquire,  in  a  foreign 
country,  the  commercial  privileges  attached  to  his  domicile,  and  be  ex- 
empted from  the  operation  of  the  general  prohibitory  laws  of  his  native 
country."  The  court  did  not,  however,  determine,  whether  a  citizen  of 
the  United  States  can  divest  himself  absolutely  of  that  character,  otherwise 
than  in  such  manner  as  may  be  prescribed  by  our  own  laws,  nor  whether 
his  expatriation  would  be  sufficient  to  rescue  him  from  punishment,  for 
a  crime  committed  against  the  United  States.  2  Cranch's  Reports,  120. 

And  lastly,  in  the  case  of  M'llvaine  v.  Coxe's  lessee,  it  was  determined, 
that  a  citizen  of  New- Jersey,  who  had  gone  over  to  the  enemy  during  the 
revolutionary  war,  and  had,  since  that  time,  remained  in  England,  enjoying 
the  privileges  of  a  British  subject,  had  not  ceased  to  be  a  citizen  of  Nevs- 
*Jersey,  and  was  entitled  to  claim  lands  by  descent,  in  that  state,  because 
several  laws  had  been  made  by  its  legislature,  some  before  and  others  after 
his  emigration,  by  which  emigrants  of  that  description  were  declared  to  be 
fugitive  citizens  and  traitors,  punishable  as  such,  but  were  not  considered  as 
aliens.  Cranch's  Reports,  vol.  ii.  p.  280.  vol.  iv.  p.  209.  T, 


TREATISE  ON  THE  LAW  OF  WAR.  177 

livelihood,  and  why  may  he  not  do  it  by  entering  into  the 
land  or  sea  service?  In  the  United  Provinces  there  is  certainly 
no  law  to  prevent  it,  and  many  Dutchmen,  formerly,  as  well 
as  within  my  own  recollection,  have  served  other  sovereigns 
by  sea  as  well  as  by  land. 

When  I  speak  of  other  sovereigns,  I  only  mean  those  who 
are  in  amity  with  us;  for,  it  is  not  lawful  to  enter  into  the 
military  service  of  an  enemy,  by  land  or  sea,  and  the  states- 
general  have  prohibited  it  by  several  edicts.  It  may,  indeed, 
be  said,  that  several  of  the  edicts  which  prohibit  our  citizens 
entering  into  the  service,  of  any  foreign  prince  or  state,  as 
they  speak  in  general  terms,  must  be  understood  in  the  same 
manner,  and  not  be  exclusively  applied  to  the  service  of  an 
enemy.  But,  if  those  edicts  are  attentively  examined,  it  will 
be  found,  that  they  are  either  occasional  statutes,  made  in 
time  of  war,  when  the  states-general  were  in  want  of  men,  or 
that  they  are  expressly  directed  against  those  who  then  were 
or  might  afterwards  have  gone  into  the  enemy's  service,  or 
against  deserters  from  our  own  army  or  navy,  who  had  enlisted 
themselves  abroad.  Once,  a  Dutch  vessel  was  captured  by  a 
French  privateer,  having  eighty  men  on  board,  all  of  them 
(except  six  Frenchmen)  natives  of  Holland  or  Zealand;  the 
states-general,  justly  exasperated,  issued  an  edict,  on  the  28th 
of  July  1674,  by  which  it  was  decreed,  that  if  any  of  our 
subjects  should  enter  into  the  naval  service  of  the  enemy, 
they  should  be  drowned.  A  similar  edict  was  made  on  the 
4th  of  April  1676.  But  those  edicts  only  relate  to  such  as 
serve  the  enemies  of  our  country,  and  cannot  be  extended 
to  those  who  enter  into  the  service  of  a  power  in  friendship 
or  in  alliance  with  us. 

If,  therefore,  our  subjects,  whose  assistance  we  do  not  want 
in  time  of  war,  and  who  are  not  prevented  by  any  law  from 
transferring  their  allegiance,  may  lawfully  hire  out  their 
military  services  to  a  friendly  prince,  why  may  not  also  that 
friendly  prince  enlist  soldiers  in  the  territory  of  a  friendly 
nation?  Where  it  is  lawful  to  let  out  to  hire,  it  is  lawful  also 
to  hire,  and  why  should  it  not  be  equally  so  to  contract  for 
the  hiring  of  soldiers  in  the  territory  of  a  friend,  as  to  mak? 

tz 


178  TREATISE  ON  THE  LAW  OF  WAR. 

any  other  contract,  and  carry  on  any  kind  of  trade.  It  will  be 
objected,  perhaps,  that  he  who  enlists  the  soldiers,  may  make 
xise  of  them  against  a  friend  of  the  sovereign  in  whose  country 
they  have  been  hired,  and  perhaps  also,  against  that  sovereign 
himself;  but  these  objections,  in  my  opinion,  are  not  of  suffi- 
cient force. 

As  to  the  first  supposition,  that  the  soldiers  may  be  em^ 
ployed  to  fight  against  a  friend  of  their  own  sovereign,  it 
must  be  observed,  that  neutrals  are  bound  in  war  to  consider 
both  the  belligerents  as  equally  in  the  right.  Such  is  the 
doctrine  generally  admitted  as  to  the  purchase  and  sale  of 
warlike  implements,  which,  indeed,  we  may  not  lawfully 
carry,  but  we  may,  in  our  own  country,  lawfully  sell  to  either 
or  both  the  belligerent  parties,  although  we  well  know,  that 
they  intend  to  make  use  of  them  in  war  against  each  other. 

To  the  second  head  of  the  objection,  that  the  soldiers 
thus  hired  may  possibly  be  employed  against  their  own 
sovereign,  I  answer,  that  we  are  only  to  attend  to  the  state 
of  our  country  at  the  time,  and  ought  not  to  look  so  far  into 
futurity.  Nor  do  I  see  any  difference  between  enlisting  men, 
and  purchasing  gun-powder,  ammunition,  arms  and  warlike 
stores,  which  may  certainly  be  done  by  a  friendly  sovereign  in 
our  country,  and  which  he  may  also  use  afterwards  against 
us.  I  repeat  it,  the  actual  relations  of  our  country  are  alone 
to  be  considered;  otherwise,  there  must  be  an  end  to  amity, 
friendship,  and  even  alliances  between  princes. 

I  am  of  opinion,  therefore,  that  the  same  law  which  obtains 
as  to  the  purchase  of  implements  of  war,  must  apply  in  like 
manner  to  the  enlistment  of  soldiers  in  the  territory  of  a 
friendly  nation,  unless  it  should  be  expressly  stipulated  other- 
wise between  the  two  sovereigns.  Thus,  in  the  treaty  between 
the  Romans  and  Antiochus  the  Great,  king  of  Syria,  the  latter 
bound  himself  not  to  enlist  soldiers  within  the  limits  of  the 
Roman  empire.*  That  treaty  was  not  equal,  otherwise  he  might 
lawfully  have  enlisted  soldiers  in  the  Roman  dominions,  nor 
could  the  senate  have  prohibited  it  without  doing  him  an  in- 

*  Liv.  1.  38.— Polyb.  Excerpt.  Legal,  c.  35.  n.  4. 


TREATISE  ON  THE  LAW  OF  WAR.  179 

Jury;  for,  while  by  the  same  treaty  it  was  stipulated,  on  re- 
ciprocal terms,  that  neither  of  the  contracting  parties  should 
supply  the  enemy  of  the  other  with  provisions,  to  Antiochus 
alone  it  was  forbidden  to  do  that  which  otherwise  may  law- 
fully be  done  by  every  sovereign. 

In  the  United  Provinces,  however,  it  appears  to  have  been 
and  is  still  prohibited  by  law,  to  enlist  soldiers,  without  the 
permission  of  the  states-general.  There  is  an  ancient  edict 
upon  this  subject,  of  the  8th  of  January  1529.  A  similar 
edict  was  made  on  the  1st  of  August  1612,  when  the 
Danes,  Swedes  and  Muscovites  had  made  enlistments  bn 
the  Dutch  territory.  Those  nations  were  prohibited,  by  name, 
from  doing  the  like,  without  having  previously  obtained  the 
permission  of  the  states-general  in  writing,  and  they  were 
strictly  forbidden  to  seduce  the  Dutch  soldiers  from  the 
national  service,  under  the  penalty  of  death  or  some  other 
discretionary  punishment.  There  are  a  variety  of  subsequent 
edicts,*  by  which  it  is  enacted,  "  -.hat  if  any  one  shall  seduce 
soldiers  within  the  territory  or  jurisdiction  of  the  United 
Netherlands,  without  the  permission,  in  writing,  of  the  states- 
general  or  their  counsellors,  the  offender  shall  be  liable,  not  to 
a  discretionary  penalty  only,  but  to  the  punishment  of  death, 
without  remission  or  mitigation."!  As  those  edicts  agree  en- 

*  Edicts  of  the  states-general,  of  the  16th  of  December  1622 — 3d  of 
March  1627— 30th  of  March  1646— 21st  of  July  1648— 20th  of  January 
1652,  and  18th  of  March  1653— of  the  states  of  Holland,  of  the  27th  o£ 
March  1652,  and  16th  of  March  1656. 

f  By  the  act  of  qpngress  of  the  5th  of  June  1794,  mentioned  in  one  of  the 
preceding  notes,  page  129,  it  is  provided  (§  2.)  "  that  if  any  person  shall, 
within  the  territory  or  jurisdiction  of  the  United  States,  enlist  or  enter  him- 
self, or  hire  or  retain  another  person  to  enlist  or  enter  himself,  or  to  go 
beyond  the  limits  or  jurisdiction  of  the  United  States,  with  intent  to  be 
enlisted  or  entered  in  the  service  of  any  foreign  prince  or  state  as  a  soldier, 
or  as  a  marine  or  seamen  on  board  of  any  vessel  of  war,  letter  of  marque  or 
privateer;  every  person  so  offending,  shall  be  deemed  guilty  of  a  high 
misdemeanor,  and  be  fined  not  exceeding  one  thousand  dollars,  and  impri- 
soned not  exceeding  three  years.  Provided,  that  this  shall  not  be  construed 
to  extend  to  any  subject  or  citizen  of  a  foreign  prince  or  state,  who  shall 
transiently  be  within  the  United  States,  and  shall,  on  board  of  any  vessel  of 
war,  letter  of  marque  or  privateer,  whirl),  at.  the  time  of  its  arrival  within 


180  TREATISE  ON  THE  LAW  OF  WAR. 

tirely  with  my  opinion,  I  submit  them  to  the  reader,  without 
observation  or  comment. 

It  may  not  be  improper  to  notice  here,  a  difference  which 
took  place  in  the  year  1§66,  between  the  states-general,  and 
the  governor-general  of  the  Spanish  Netherlands*  The  states 
complained  to  him,  that  the  bishop  of  Munster,  with  whom 
they  were  at  war,  had  enlisted  soldiers  in  the  Spanish  terri- 
tories in  the  Low  Countries.  The  governor  answered,  that  he 
had  not  authorised  him  so  to  do,  but  that  if  he  had,  there  was 
nothing  to  prevent  him,  as  Spain  was  neutral  in  the  war,  and 
that  the  states-general  might  exercise  the  same  right,  if  they 
pleased.*  But,  whether  such  a  thing  is  lawful,  without  the 
consent  of  the  sovereign,  and  whether  the  sovereign  may, 
with  propriety,  refuse  his  permission,  when  applied  to  for 
it,  is  the  very  subject  of  our  inquiry.  Whether  or  not,  the 
bishop  of  Munster  had  a  right  to  enlist  soldiers  in  the  Spanish 
Netherlands,  without  the  permission  of  the  governor-general, 
the  reader  must  determine  for  himself  from  what  has  been 
above  stated. 

the  United  States,  was  fitted  and  equipped  as  such,  enlist  or  enter  himself, 
or  hire  or  retain  another  subject  or  citizen  of  the  same  foreign  prince  or 
state,  who  is  transiently  within  the  United  States,  to  enlist  or  enter  himself 
to  serve  such  prince  or  state  on  board  such  vessel  of  war,  letter  of  marque 
or  privateer,  if  the  United  States  shall  then  be  at  peace  with  such  prince  or 
slate."  3  Laws  U.  S.  88.  T. 

*  AHz.  I.  46. 


TREATISE  ON  THE  LAW  OF  WAR.  181 


CHAPTER  XXIII. 

Of  the  right  of  the  several  provinces  of  the  United  Nether- 
lands to  declare  and  make  war. 

JN  this  chapter  our  author  discusses  a  constitutional  question, 
relating  exclusively  to  his  own  country,  under  its  former 
government.  He  inquires,  "whether  the  united  provinces  of 
the  Netherlands  had  separately  the  right  of  declaring  and 
making  war.  From  the  tenor  of  one  of  the  articles  of  the  Con- 
federation of  Utrecht,  (the  federal  constitution  of  the  Dutch 
union),  it  would  seem  that  they  had  not  that  power;  for,  it 
is  there  expressly  stipulated,  "  that  no  war  shall  be  made 
without  the  advice  and  consent  of  all  the  provinces;"  but 
our  author  contends  and  argues  at  great  length,  that  every 
power  which  by  that  treaty  was  not  expressly  granted,  was 
retained  by  the  several  provinces;  that  before  it  was  entered 
into,  they  separately  had  the  right  of  declaring  and  making 
war,  and  had  not  explicitly  parted  with  it.  That  the  above- 
mentioned  clause  in  their  confederation  ii>as  only  applicable  to 
national  wars,  entered  into  for  the  redress  of  national  injuries; 
but  that  if  a  single  province  should  receive  an  injury  from  a 
foreign  state,  it  might  lawfully  avenge  it  by  a  separate  war. 

As  we  do  not  think  that  this  chapter  can  interest  our  readers 
:n  any  point  of  view,  -we  have  omitted  it  in  this  translation, 
and  believe  it  sufficient  to  have  given  this  general,  outline  of  its 
contents.  T. 


182          TREATISE  ON  THE  LAW  OF  WAR. 


CHAPTER  XXIV, 

Of  Reprisals. 

REPRISALS*  wfere  a  thing  entirely  unknown  to  the  an- 
cient Romans,  and  cannot  be  expressed  by  an  adequate 
word  in  their  language.  Some  writers  have  used  the  words 
pignoratio,  clarigatio,  but  neither  of  them  renders  with  pre- 
cision what  we  understand  by  reprisals.  Nor  had  the  Romans 
occasion  for  such  a  word,  who  paid  the  most  sacred  regard  to 
the  property  of  their  friends,  and  who  would  have  disdained 
to  commit  hostilities  on  those  for  whom  they  professed  friend- 
ship, and  to  subject  their  good  friends  to  indiscriminate  plun- 
der, by  sea  and  land. 

As  there  is  no  instance  of  such  wickedness  in  the  history 
of  that  magnanimous  people,  neither  do  their  laws  exhibit 

*  The  word  reprisal,  according  to  its  Etymology,  is  synonimous  with 
recaption  or  retaking,  and  the  thing  which  is  meant  hy  it,  is  analogous  in 
name  as  well  as  in  substance,  to  the  common  law  process  of  luitfiernanti 
\vith  this  difference,  that  the  one  is  a  legal  retaliation,  exercised  only 
on  the  goods  and  chattels  of  the  party  who  has  been  guilty  of  the  first 
tortious  taking;  the  other  is  exercised  on  the  property  of  all  the  indi- 
viduals of  the  same  nation.  "  For,"  says  Valin,  "  it  is  a  principle  established 
by  the  universal  law  of  nations,  that  all  the  subjects  of  a  state  are  bound 
in  soliJum,  to  make  reparation  for  the  injuries  done  to  foreigners  by  the 
state  itself,  or  any  of  its  members."  Traits  des  Prises,  p.  321. 

Reprisals  are  either  general  or  special. — They  are  general,  when  a  sove- 
reign, who  has,  or  thinks  that  he  has  received  an  injury  from  another  prince, 
issues  orders  to  his  military  officers,  and  delivers  commissions  to  his  sub- 
jects to  take  the  persons  and  property  of  the  subjects  of  the  other  nation, 
wherever  the  same  may  be  found.  It  is,  at  present,  the  first  step  which  is 
generally  taken  at  the  commencement  of  a  public  war,  and  is  considered  as 
equivalent  to  a  declaration  of  it. 

Special  reprisals  are  granted,  in  time  of  peace,  to  individuals  who  have 
suffered  an  injury  from  the  subjects  of  another  nation,  and  these  alone  are 
treated  of  in  the  present  chapter.  T. 


TREATISE  ON  THE  LAW  OF  WAR. 

.the  least  trace  of  it.  How  then  shall  we  explain  the  stipu- 
lation which  is  contained  in  two  different  treaties*  between 
Spain  and  the  United  Provinces,  "  that  no  letters  of  marquef 
or  reprisal  shall  be  granted,  but  with  full  knowledge  of  the 
cause,  against  those  persons  only  on  whom  they  may  lawfully 
be  issued  by  the  Imperial  laws  and  constitutions,  and  con- 
forming to  the  regulations  which  those  laws  prescribe?"  For,  in 
the  laws  of  jfiistinian,  which  are  always  understood  by  the 
general  description  of  Imperial  laws  in  countries  that  are  not 
governed  by  an  emperor,  there  is  not  a  single  word  about 
reprisals,  which,  as  I  have  already  observed,  were  entirely 
unknown  to  the  Romans.  In  order  to  rescue  from  the  impu- 
tation of  ignorance,  the  very  learned  men  who  drew  up  those 
treaties,  I  must  suppose,  that  by  Imperial  laws,  they  meant 
the  law  of  nations,  which,  as  well  as  the  law  of  Justinian,  is 
denominated  throughout  Europe,  the  common  law,\  so  that 
they  must  have  considered  the  words  common  and  Imperial 
law,  as  convertible  terms.  I  cannot  think  of  any  other  way  of 
accounting  for  that  mistake. 

According  to  the  law  of  nations,  then,  reprisals  are  not  to 
be  granted  but  with  a  full  knowledge  of  the  cause,§  nor  for 

*  Truce  of  the  9th  of  April  1609,  art.  11.— Treaty  of  Minister,  of  the  23d 
of  January  1648,  art.  22. 

f  Letter  of  marque  and  reprisal  is  the  old  technical  expression  for  what 
we  now  call  a  privateer's  commission-  It  still  preserves,  in  law,  the  same 
signification,  although  it  is  common,  at  present,  to  apply  the  denomination 
letter  of  marque,  by  way  of  distinction,  to  a  vessel  fitted  out  for  war  and 
merchandize,  and  armed  merely  for  defence.  T. 

\  See  note  f  above,  p.  53.         T. 

§  In  order  that  letters  of  reprisal  may  not  be  granted,  without  full  know- 
ledge of  the  cause,  or  without  sufficient  reasons,  various  wise  precautions 
were  taken  by  Louis  XIV.  in  his  Ordonnance  de  la  Marine,  of  August  1681. 
By  that  ordinance,  the  party  injiwed,  is  obliged,  as  soon  as  possible  afte,r 
the  injury  suffered,  to  cause  the  facts  to  be  ascertained,  and  the  damage 
to  be  estimated  by  a  court  of  admiralty;  after  which,  and  not  before,  he 
may  petition  the  crown  for  letters  of  reprisal;  these  are  not  issued  until 
after  a  proper  and  fruitless  application  to  the  sovereign  of  the  offending 
party,  nor  then,  without  sufficient  security  being  given  by  the  petitioner;  and 
notwithstanding  all  that,  if  at  a  future  day,  the  statement  contained  in 
the  petition  should  be  found  not  to  be  true,  the  petitioner  is  to  be  con 
clemned  to  the  payment  of  full  damages  and  interest  to  the  party  whose  ptc 


184  TREATISE  ON  THE  LAW  OF  WAR. 

such  causes  or  against  such  persons  as  the  law  exempts  from 
them,  nor  then  without  conforming  to  the  rules  and  order  of 
proceeding  which  usage  has  established.  The  first  of  these 
rules,  is,  that  letters  of  reprisal  are  not  to  be  granted,  unless 
there  has  been  a  clear  and  open  denial  of  justice.  Hence,  by 
the  treaties  above  mentioned,*  it  was  agreed  between  us  and 
Spain,  "  that  if  any  injury  should  be  done  not  warranted  by 
the  orders  of  his  majesty  on  the  one  hand,  or  of  the  states- 
general  on  the  other,  the  peace  should  not  be  thereby  con- 
sidered as  ipso  facto  broken,  but  that  it  should  be  lawful,  in 
case  of  an  open  dental  of  justice,  to  seek  redress  according  to 
custom,  by  issuing  letters  of  marque  and  reprisal."  Such  is 
the  common  law,  which  has  long  been  and  still  is  used  among 
nations,  when  justice  is  denied  by  the  sovereign,  and  it  is  con- 
formable to  the  opinion  of  all  who  have  written  on  this  subject. 
There  is  never  any  occasion  for  reprisals,  except  in  time  of 
peace,  though  Mornac\  is  of  opinion,  that  they  cannot  be 
granted,  except  where  there  is  actual  war.  But  he  is  certainly 
mistaken. 

Reprisals,  therefore,  are  a  means  of  redress,  to  be  used 
only  in  case  of  a  denial  of  justice.  They  are  an  authorization, 
granted  by  a  sovereign,  to  take  the  persons  and  goods  of 
the  subjects  of  another  prince;  in  order  to  obtain  satisfaction 
for  an  injury:}:  committed  upon  his  own  subjects,^  for  which 

perty  shall  have  been  seized  by  virtue  of  the  letters  of  reprisal,  and  more- 
over, to  restore  four  times  the  amount  which  he  shall  have  received.  For 
the  sake  of  greater  regularity,  letters  of  reprisal  are,  in  all  cases,  to 
express  the  sum  for  which  they  are  given,  and  to  specify  a  time  to  which 
their  exercise  is  limited,  and  after  the  expiration  of  which,  they  become 
void.  Ord.  de  la  Mar.  I.  3.  tit.  10.  Des  Represailles.  T, 

*  Art.  31,  of  the  truce,  and  60  of  the  treaty  above  mentioned. 

f  Ad  auth.  sed  omnino,  cod.  ne  uxor  pro  marito. 

\  Valin  is  of  opinion,  that  letters  of  reprisal  may  be  granted  not  only  for 
reparation  of  an  injury  done  by  means  of  actual  force  and  violence,  but  also 
for  a  debt  justly  due  by  a  subject  of  a  foreign  power,  for  which  the  creditor 
has  not  been  able  to  obtain  justice  in  a  regular  course  of  legal  proceedings. 
Trait*  des  Prises,  p.  321.  T. 

§  Mr.  Valin  is  also  of  opinion,  that  not  only  a  subject,  by  birth  or 
naturalization,  may  apply  for  and  obtain  letters  of  reprisal,  but  also  a 


TREATISE  ON  THE  LAW  OF  WAR.  185 

justice  has  been  denied  by  the  sovereign  of  the  offending 
party.  Thus,  an  injury  committed  by  force  and  violence,  and 
not  repressed  by  the  competent  magistrate,  is  redressed  by  the 
same  means  and  in  the  same  manner. 

In  order  that  no  one  should  rashly  complain  of  a  denial  of 
justice,  special  provisions  have  been  made  by  treaties  between 
different  nations.  By  the  24th  article  of  the  treaty  of  peace 
between  England  and  the  states-general  of  the  5th  of  April 
1654,  reprisals  are  not  to  take  place,  except  sub  modo;  for,  it 
is  there  stipulated,  "that  letters  of  reprisal  shall  not  be  granted, 
unless  the  prince,  whose  subject  shall  conceive  himself  to  have 
been  injured,  shall  first  lay  his  complaint  before  the  sovereign 
whose  subject  is  supposed  to  have  committed  the  tortious  act, 
and  unless  that  sovereign  shall  not  cause  justice  to  be  rendered 
to  him  within  three  months  after  his  application.  This  sti- 
pulation was  renewed  by  the  31st  article  of  the  treaty  of  peace 
between  the  same  nations,  of  the  31st  of  July  1667. 

There  are  many  other  instances  of  treaties  between  nations, 
in  which  this  subject  has  been  attended  to.  In  the  treaty  of 
commerce  between  the  king  of  France  and  the  states-general, 
of  the  27th  of  April  1669,  article  17,  after  stipulating,  that  re- 
prisals shall  not  be  resorted  to,  unless  justice  shall  have  been 
first  denied,  it  is  immediately  added,  *' that  justice  shall  not  be 
considered  as  having  been  denied,  unless  the  petition  by  which 
letters  of  reprisal  are  applied  for  shall  have  been  first  communi- 
cated to  the  ambassador  of  the  sovereign  whose  subjects  are 
complained  of,  that  he  may  inquire  into  the  truth  of  the  com- 
plaint, and  if  he  finds  it  true,  that  he  may  cause  justice  to  be 
done  to  the  injured  party  within  four  months.*  Thus,  without 

foreigner^  dotniciliated  in  the  country  (regnicola;)  the  state  being  bound 
also  to  protect  him,  and  to  consider  the  injury  done  to  him  as  an  affront  to 
the  majesty  of  the  sovereign.  Ibid.  p.  225.  T. 

*  By  the  treaty  of  Ryswick,  art.  9,  and  the  treaty  of  Utrecht,  art.  16,  (the 
latter  concluded  between  England  and  France  on  the  llth  of  April  1713),  it 
is  stipulated,  "  that  letters  of  reprisal  shall  not  thereafter  be  granted  by 
either  of  the  high  contracting  parties,  to  the  prejudice  or  detriment  of  the 
subjects  of  the  other,  except  only  in  such  case  wherein  justice  is  denied  or 
delayed;  which  denial  or  delay  of  justice  shall  not  be  regarded  as  verified, 
unless  the  petitions  of  the  person  who  desires  the  said  letters  of  reprisal 

f.  2  A 


186  TREATISE  ON  THE  LAW  OF  WAR. 

any  violation  of  the  existing  peace,  the  sovereign  against  whose 
subjects  a  complaint  is  made,  sits  in  judgment  upon  it,  and 
pronounces  his  own  sentence.  It  is  certainly  useful  to  restrict 
the  use  of  reprisals  by  similar  treaties;  for,  it  would  be  unjust 
to  take  it  away  altogether  between  the  subjects  of  independent 
nations, 

It  was,  however,  stipulated,  by  the  9th  article  of  the  treaty 
between  the  emperor  of  Morocco  and  the  states-general,  of  the 
24th  of  September  1610,  "  that  neither  of  the  two  sovereigns 
should  issue  letters  of  reprisal,  but  that  they  should  administer 
justice  to  each  other's  subjects."  But  this  is  an  idle  stipulation; 
for  what  is  to  be  done,  if  justice  is  not  administered?  The  in- 
jured sovereign  will  then  have  recourse  to  reprisals,  and  will 
say  that  he  is  compelled  to  it  by  the  exigency  of  the  case.  If 
it  be  agreed  between  princes,  that  justice  shall  be  mutually  ad- 
ministered to  the  subjects  of  each  other,  that  stipulation  should 
be  performed  with  good  faith;  but  still,  it  is  true,  that  the  ob- 
ligation to  render  justice  to  foreigners,  exists  independent  of 
treaties,  and  whether  there  is  or  not,  a  special  convention  to 
that  effect,  reprisals  are  not  to  be  resorted  to,  unless  justice  is 
previously  denied. 

It  might,  perhaps,  be  supposed,  that  reprisals  are  entirely 
taken  away  by  the  16th  article  of  the  abovementioned  treaty 
of  the  5th  of  April  1654,*  because  it  is  there  agreed,  that  if 

be  communicated  to  the  minister  residing  there,  on  the  part  of  the  prince 
against  whose  subjects  they  are  requested  to  be  granted;  that  within  the 
space  of  four  months  or  sooner,  if  it  be  possible,  he  may  manifest  the  con- 
trary, or  procure  the  satisfaction  which  may  be  justly  due.  And  if  there 
should  not  be  on  the  spot,  any  minister  or  ambassador  from  that  sovereign, 
no  letters  of  reprisal  shall  be  issued  until  after  the  expiration  of  the  four 
months,  reckoning  from  the  day  on  which  the  petition  shall  have  been  pre- 
sented to  the  prince  against  whose  subjects  the  letters  are  applied  for,  or 
to  his  privy  council." 

The  same  stipulation  is  contained  in  substance,  in  the  3d  article  of  the 
treaty  of  commerce  concluded  between  Great-Britain  and  France,  on  the  same 
day  with  the  treaty  of  Utrecht,  and  in  all  the  treaties  made  at  Utrecht  at  the 
same  time  between  the  other  powers;  "  and  thus,"  says  M.  Valin,  "  it  has 
become  a  part  of  the  common  lata  of  nations."  Traitt  des  Prises,  p.  331. — II 
is  also  contained  (except  the  last  clause)  in  the  treaty  of  commerce  be- 
tween France  and  Great- Britain^  of  the  26th  of  September  1786,  art.  3.  T 

»  Above,  p.  185. 


TREATISE  ON  THE  LAW  OF  WAR.  187 

any  one  shall  commit  an  infraction  of  the  peace  subsisting  be- 
tween the  two  powers,  the  infractor  shall  be  punished,  and 
judgment  shall  be  given  within  a  certain  time,  which  is  limited 
by  the  same  article.  But  such  an  inference  would  not  be  cor- 
rect, for,  what  if  the  criminal  should  not  be  punished,  or  if 
what  he  had  forcibly  taken  away  should  not  be  restored?  Re- 
prisals, in  such  a  case,  would  still  have  to  be  resorted  to;  and 
that  such  was  the  intention  of  the  parties,  appears  by  the  24th 
article  of  the  same  treaty,  in  which,  as  I  have  already  shewn, 
there  is  a  mode  of  proceeding  pointed  out  for  the  granting  of 
letters  of  reprisal.  Since  reprisals  are  in  use  among  nations,- 
these,  and  war,  which  follows  close  at  their  heels,*  are  the  only 
remedies  of  independent  sovereigns,  for  repelling  unjust  ag- 
gressions, as  they  cannot  submit  themselves  to  the  judgment 
of  a  foreign  prince,  which  they  would  consider  as  a  shameful 
prostitution  of  their  own  majesty. 

It  seems  that  the  power  of  granting  letters  of  reprisal  be- 
longs to  the  sovereign  alone;  for,  it  is  beyond  the  authority  of 
subordinate  magistrates.  It  is  so  observed  every  where,  even  in 
France,  where  formerly  letters  of  reprisal  were  granted  by  the 
parliaments.!  When  the  towns  of  the  Netherlands  waged  se- 
parate wars,  they,  in  like  manner,  granted  letters  of  reprisal. 
There  exists  an  ancient  law  of  the  city  of  Amsterdam,  by 
which  it  was  provided,  that  if  any  injury  should  be  done  to  one 
of  its  citizens  out  of  its  territory  and  jurisdiction,  either  by 
main  force  and  violence,  or  by  an  unjust  judgment,  (which 
last  expression,  I  beg  the  reader  will  particularly  observe),  the 

*  Les  represailles — sans  annoncer  precisfment  la  guerre,  y  conduisent  naturel- 
lement,  &  en  sont  assez  souvent  le  prelude.  Reprisals  do  not,  it  is  true,  precisely 
indicate  war,  but  they  naturally  lead  to  that  state  of  things,  and  are  often 
enough  a  prelude  to  it.  Valin,  Traite  des  Prises,  p.  321.  T. 

f  Cetui  droit  est  de  puissance  absolve,  qui  ne  se  communique  ni  delegue  aux 
gouverneurs  des  provinces,  villes  Cf  cit£s,  amiraux,  vice-amiraux  on  autres 
magistrals.  The  right  of  granting  letters  of  reprisal,  is  a  right  summi 
imperil,  and  cannot  be  communicated  nor  delegated  to  the  governors  of 
provinces,  cities  or  towns,  nor  to  the  admirals,  vice-admirals  or  other 
magistrates.  Le  Guidon,  c.  10,  art.  10.  The  parliaments  of  France,  however, 
exercised  it  until  the  year  1485,  when  Charles  VIII.  by  a  special  or- 
dinance,  reserved  it  exclusively  to  himself.  Valin,  ibid.  p.  329.  T. 


188  TREATISE  ON  THE  LAW  OF  WAR. 

aggrieved  party  should  prefer  his  complaint  to  the  magistrate 
of  Amsterdam^  who  should  write  on  the  subject,  to  the  magis- 
tracy of  the  place  where  the  injury  was  committed,  and  if  after 
receiving  an  answer,  he  should  still  think  that  his  fellow-citizen 
had  been  injured  and  was  entitled  to  redress,  he  should,  by 
his  judicial  authority^  indemnify  the  injured  party,  by  issuing 
process  against  the  persons  or  goods  of  the  subjects  of  the 
prince  whose  subjects  had  done  the  injury,  if  they  should  be 
found  within  the  territory  of  Amsterdam.* 

I  have  observed,  that  this  law  of  the  city  of  Amsterdam, 
says,  or  by  an  unjust  judgment.  It  is  not  enough  that  the  pro- 
perty of  our  subjects  or  citizens  be  taken  by  virtue  of  a  judg- 
ment, it  must  be  also  an  unjust  one.  Of  this,  however,  the 
magistrate  of  Amsterdam  alone  was  to  judge;  for,  such  things 
are  seldom  trusted  to  the  judgment  of  others. f  The  treaties 
between  sovereigns  merely  say,  that  letters  of  reprisal  are  not 
to  be  granted,  unless  for  a  denial  of  justice;  but  an  unjust 
sentence  will  easily  be  construed  into  such  a  denial,  and  indeed 
sovereigns  will  qualify  as  unjust,  every  sentence  that  is  not 
agreeable  to  them4 

*  Those  who  have  obtained  letters  of  reprisal,  may,  by  virtue  thereof, 
seize  within  their  own  country,  the  goods  and  effects  of  the  subjects  of  the 
power,  whose  subjects  have  done  them  the  injury;  but  it  must  be  done 
•tid  juris,  by  some  judicial  process,  and  not  manuforti,  by  private  authority, 
unless  there  should  be  danger  of  the  property  being  carried  out  of  the 
country,  before  application  could  be  made  to  a  competent  magistrate. 
Fix/in,  ibid.  p.  333.  T. 

f  See  above,  p.  72. 

J  In  the  letter  of  the  duke  of  New-Castle,  to  Mons.  Michell,  on  the  subject 
of  the  celebrated  controversy  with  the  king  of  Prustia  respecting  the  Silesia 
loan,  are  found  the  sentiments  of  the  English  jurists  upon  this  subject.  "  The 
law  of  nations,"  say  they, "  founded  upon  justice,  equity,  convenience  and  the 
reason  of  the  thing,  and  confirmed  by  long  usage,  does  not  allow  of  reprisals, 
except  in  case  of  violent  injuries,  directed  or  supported  by  the  state,  and  jus- 
tice absolutely  denied  in  re  tninime  dubia,  by  all  the  tribunals,  and  afterwards 
by  the  prince — Where  the  judges  are  left  free,  and  give  sentence  according 
to  their  conscience,  though  it  should  be  erroneous,  that  would  be  no  ground 
for  reprisals.  Upon  doubtful  questions,  different  men  think  and  judge  dif- 
ferently; and  all  a  friend  can  desire,  is,  that  justice  should  be  as  impartially 
administered  to  him,  as  it  is  to  the  subjects  of  the  prince  in  whose  courts 
the  matter  is  tried."  1  Magens  an  Intttr.  491. 

These 


TREATISE  ON  THE  LAW  OF  WAR.  189 

I  have  seen  many  instances  in  our  own  country,  of  letters 
of  reprisal  granted  by  cities  and  towns.  They  are  vestiges  of 
the  ancient  liberty  of  the  Hollanders,  when  the  several  mem- 
bers of  the  states  were  more  independent  than  the  states 
themselves;  for,  the  provincial  states,  ever  since  the  confe- 
deration of  Utrecht,  although  they  are  severally  independent, 
cannot  issue  letters  of  reprisal  generally  and  in  every  case. 
Indeed,  it  might  be  said,  that  they  cannot  issue  them  in  any 
case,  because  they  are  a  species  of  war,  and  by  the  17th  article 
of  the  said  confederation,  it  is  expressly  declared  to  be  unlaw- 
ful for  the  several  provinces  to  give  any  cause  of  war  to  foreign 
princes. 


trip  The  remainder  of  this  chapter  treats  only  of  the  right 
sf  the  several  provinces  of  the  United  Netherlands  to  issue 
letters  of  reprisal;  our  author  thinks  that  they  may  do  it  in  their 
own  cause,  for  an  injury  done  to  themselves  in  their  several 
capacities,  but  not  for  an  injury  done  to  the  union.  We  have 
omitted  this  discussion,  as  uninteresting  to  our  readers. 

. 

These  principles  are  undoubtedly  correct,  on  the  supposition,  that  law  and 
justice  are  every  where  impartially  administered,  according  to  the  old 
established  rules  of  the  law  and  usage  of  nations;  but  where  certain  courts 
(as  is  at  present  the  case  in  almost  every  country  of  Europe)  are  known  to 
be  mere  political  establishments,  and  are,  properly  speaking,  ministerial 
boards,  obliged  to  conform  to  the  decrees  and  orders  of  the  sovereign, 
and  guided  in  their  decisions  by  considerations  of  state  policy,  varying  and 
fluctuating  with  every  change  in  the  aspect  of  national  affairs,  such  im- 
partiality from  them  can  hardly  be  presumed,  and  tribunals  so  constituted, 
ought  not  to  be  held  up  as  a  shield  to  ward  off  the  responsibility  of  the 
sovereign.  In  the  case  just  cited,  the  king  of  Prussia  was  not  satisfied  with 
the  plausible  arguments  of  the  English  civilians,  but  demanded  and  obtained 
of  the  British  court  £  20,000  sterling,  as  an  indemnity  for  Prussian  vessels 
and  cargoes  illegally  condemned.  Examination  of  the  British  doctrine,  &c. 
p.  99.  And  there  have  been  instances  of  commissioners  being  appointed,  in 
pursuance  of  treaties  between  neutral  and  belligerent  powers,  to  reform  the 
unjust  judgments  of  prize  tribunals.  Treaty  between  the  United  States  and 
Great- Britain,  of  the  19th  of  November  1794,  art.  7 — between  the  United 
States  and  Spain,  of  the  27th  of  October  1795,  art.  21.  2  Laivs  U.  S.  473,  534. 

T. 


190  TREATISE  ON  THE  LAW  OF  WAR 


CHAPTER  XXV. 

Miscellaneous  Maxims  and  Observations. 

I.  TT  is  not  lawful  to  take  or  retain  possession  of  a  neutral 
fortress,  for  fear  the  enemy  should  occupy  it. 

In  the  year  1 620,  the  states-general,  who  had  promised  to 
evacuate  the' fortress  of  Lieroort,  in  East  Friesland,  did  not  do 
it,  but  kept  possession  of  it,  "  lest,"  said  they,  "  the  enemy 
should  occupy  it,  and  make  use  of  it  against  themselves."  They 
were  clearly  in  the  wrong,  and  acted  in  this  against  the  opinion 
of  prince  Maurice  of  Orange,  who  was  no  friend  to  the  Fries- 
landers,  and  was  warmly  attached  to  the  cause  of  the  states. 
Their  conduct  was  even  blamed  by  their  own  counsellors,  in 
1621,  and  several  times  afterwards,  as  Aitzema  relates.* 

There  are  men,  however,  who  call  themselves  lawyers, 
and  who  approve  of  similar  injuries,  among  whom  I  wish 
I  had  not  to  name  the  celebrated  Grotius.]  I  can  tolerate  such 
an  opinion  in  such  men  as  Zouch\  and  Buddceus;§  the  former 

*  Aitz.  1.  2. 

f  Jfinc  cotligore  est,  quoniodo  ti,  qui  helium  pium  gerit,  liceat  locum  occupart, 
r/ui  situs  sit  in  solo  pacato:  nimirum  si  non  imaginarium,  sed  certum  sit 
periculum,  ne  hostis  cum  locum  invadat,  £3*  inde  incparabilia  damna  det. 
Hence,  it  may  be  inferred,  how  it  is  lawful  for  one  who  is  engaged  in  a 
lawful  war,  to  occupy  a  place  situated  on  neutral  territory;  particularly  if 
there  is  a  certain  and  not  an  imaginary  danger  of  the  enemy's  occupying  it, 
and  from  thence  doing  considerable  injury  to  his  adversary.  Grot.  De  J.  B. 
ac  P.  1.  2.  c.  2-  $  10.  Gronovhts,  in  a  note  upon  this  passage  in  Grotius, 
considers  our  author's  opinion  upon  this  subject  as  unreasonable.  Dissentit, 
nbsque  ratione,  amplissimus  Bynkershoek.  Whether  his  dissent  was  entirely 
absque  ratione,  the  awful  events  which  have  taken  place  in  Europe  within 
these  few  years,  have  surely  enabled  the  reader  to  decide.  '/'. 

\  De  Jure  Fee",  p.  2.  §  5. 

§  Philosoph.  Pract.  c.  5.  §  6.  fl  ult. 


TREATISE  ON  THE  LAW  OF  WAR.  191 

of  whom,  however,  borrows  it  from  Grottus.  They  support  it 
by  adducing  instances  of  similar  rapine,  as  if  example,  in  such 
cases,  were  sufficient;  while  it  is  only  solving  a  problem  by 
another  problem,  litem  quod  lite  resolvit.  Nor  is  what  they 
say  about  embargoes  of  ships  at  all  analogous  to  the  present 
case;  for,  ships  that  are  found  in  the  dominions  of  another 
sovereign,  are  in  a  manner  subject  to  him,  and  those  em- 
bargoes are  laid  by  virtue  of  a  custom  universally  received 
among  sovereigns.  But,  it  never  has  been  admitted  as  a  custom, 
that  the  dominions,  towns  or  forts  of  a  friendly  nation,  may 
otherwise  than  tortiously  be  invaded  or  retained. 

II.   Conquered  countries,  like  lands  purchased ',  pass  CUM 

ONERE. 

The  king  of  Spain  had  hypothecated  a  certain  territory  for 
a  sum  of  money  which  he  had  borrowed  of  one  who  was  in 
friendship  with  him  and  the  states-general.  The  states  con- 
quered that  territory  in  the  course  of  a  war.  The  counsel- 
lors of  Holland  were  of  opinion,  that  the  pledge  was  extinct.* 
But  they  were  mistaken,  for  the  states  had  only  conquered 
what  belonged  to  the  king  of  Spain,  that  is  to  say,  the  right  of 
empire  and  dominion,  as  he  had  possessed  it.  And  as  he  held 
it  subject  to  that  hypothecation,  it  could  not  pass  over  to  the 
states  in  any  other  manner.  If  the  states,  instead  of  conquer- 
ing, had  purchased  from  the  king  a  part  of  that  territory,  the 
creditor  would  still  have  been  entitled  to  his  whole  pledge. 
He  would  have  preserved  his  rights  against  the  king  of  Spain^ 
the  vendor,  who  had  bound  himself  for  the  debt,  and  against 
the  states-general,  who  had  purchased  the  land  hypothecated 
for  its  payment,  because  property,  when  sold,  passes  with  all 
its  charges,  which  remain  entire  for  the  benefit  of  the  creditor. 
But  now  the  Dutch  have  taken  the  territory,  and  consider  it 
as  confiscated  to  them.  And  so  it  is,  as  far  as  it  belonged  to 
the  king  of  Spain,  but  that  does  not  include  the  interest  which 
the  neutral  creditor  had  in  it.  If  the  hypothecated  debt,  in- 
deed, had  belonged  to  an  enemy,  it  might  also  have  been  justly 
confiscated  by  the  law  of  war. 

*  Consil.  Belg-.  vol.  3.  Consll  2. 


192  TREATISE  ON  THE  LAW  OF  WAR. 

III.  Property  captured  and  afterrvards  ransomed  or  given 
up  by  the  enemy,  is  not  thereby  liberated  from  the  claims  of  the 
insurer  or  lender  at  maritime  risk.* 

It  has  been  questioned,  whether  property,  particularly  ships 
and  merchandize,  which  after  being  captured,  are  ransomed 
or  given  up  by  the  enemy,  to  their  former  owner,  are  thereby 
exonerated  from  the  prior  claims  of  the  insurers  or  of  those 
who  had  lent  money  thereon  at  maritime  risk?  Some  lawyers 
have  been  of  opinion,!  that  if  a  ship  has  been  ransomed,  or  if 
the  captor  has  given  her  up  to  her  former  owner,  she  lias, 
as  it  were,  ceased  to  be  entire,  and  she  is  to  be  considered 
as  a  new  ship,  and  that  a  total  loss  has  taken  place  with  respect 
to  the  insurers  and  lenders  at  maritime  risk. 

But  this  appears  to  me,  neither  just  nor  equitable,  because 
the  insurer  is  only  responsible  for  the  damage  suffered,  and 
the  money  lender  only  liable  to  a  loss  on  the  amount  of  his 
loan  in  proportion  to  that  damage.  The  one,  therefore,  is  not 
bound  to  pay,  nor  the  other  to  lose  more,  than  the  amount  of 
the  salvage  or  ransom.  Philip  the  II.  in  his  ordinance  upon 
insurance,  of  the  2Oth  of  January  15504  section  27,  prohibits 
the  ransoming  of  vessels  from  pirates,  and  therefore  permits 
it  from  real  enemies,  with  a  view,  no  doubt,  to  shew,  that  the 
insurers  are  bound  for  the  amount  of  the  salvage,  but  no 
farther;  otherwise,  there  was  no  reason  for  speaking  of  ransom 
in  an  edict  which  exclusively  relates  to  the  subject  of  in- 
surance. Nay,  the  last  clause  of  the  policies  in  common  use 
among  the  merchants  sufficiently  shews,  that  when  a  ship  is 
ransomed,  the  interest  which  the  insurers  have  therein,  is  not 
less  redeemed  than  the  property  of  the  owner  himself.  I  am, 
therefore,  of  opinion,  that  the  loss  or  damage  which  the  in- 
surers are  bound  to  pay,  and  which  the  lenders  at  maritime 
risk  are  obliged  to  lose,  is  the  precise  amount  of  the  money 

*  The  civil  law  denominates  maritime  loans  or  loans  at  maritime  ristt 
Cfcenus  •  nanticiimj,  those  contracts  which  at  common  law  are  called 
hittomry  and  respondentia.  '/'• 

f  Consil.  Belg.  vol.  1.  Consil.  52.— vol.  3.  Consil.  248. 

\  See  note  J  p.  131.  in  which  this  ordinance  is  mentioned,  by  mistake,  a* 
of  the  26th,  instead  of  the  20th  ef  January.  T. 


TREATISE  ON  THE  LAW  OF  WAR.  193 

axpencled  in  the  salvage  or  redemption  of  the  property.  I 
grant,  however,  that  if  a  ship  has  been  captured,  carried  into 
port,  and  there  condemned  and  sold,  and  afterwards  is  pur- 
chased by  her  first  owners,  in  that  case  the  loss  will  be  tptal  to 
the  underwriters  and  money  lenders;  and  the  ship  thus  pur- 
chased, will  be  considered  as  zL  new  ship  in  the  hands  of  the 
first  owner.  There  is  an  opinion  to  this  effect  in  the  Consilia 
Belgica.* 

IV.  Orders,  in  war,  are  to  be  strictly  obeyed. 

The  states-general  had  ordered,  that  their  troops,  who 
held  the  citadel  of  Reyd,  in  the  country  of  Juliers,  should 
obey  the  orders  of  Florence  van  den  Boetseler,  who  was  lord 
of  the  place.  Boetseler  exhibited  that  order  to  the  commandant 
of  the  fort,  and  required  him  to  deliver  it  up  to  the  Spaniards, 
who  were  approaching,  and  the  commandant  accordingly  sur- 
rendered it  up  on  the  30th  of  August  1621.f  But  Maurice, 
prince  of  Orange,  was  so  angry  with  him  on  that  account,  that 
he  punished  him  with  death  on  the  14th  of  September  fol- 
lowing, pretending  that  the  order  was  only  applicable  to  civil 
and  not  to  military  matters.  I  doubt  whether  he  did  right; 
for,  as  the  citadel  did  not  belong  to  the  states-general,  that 
order  can  have  meant  nothing,  but  that  the  rights  of  the  lord 
of  the  territory,  although  he  had  admitted  a  garrison  within 
it,  were  to  be  kept  inviolate,  and  that  the  soldiers  should  not 
defend  the  citadel  any  longer  than  the  lord  should  think 
proper,  lest  he  should  be  involved  in  the  same  difficulty  with 
the  Spaniards,  in  which  the  count  of  East  Friesland  found 
himself,  when  the  states  refused  to  evacuate  fort  Lieroort,  as 
I  have  mentioned  at  the  beginning  of  this  chapter. 

V.  It  is  not  lawful  to  repair  fortifications  during  a  truce,  or 
pending  a  capitulation. 

Albericus  Gentilis\.  is  of  opinion,  that  while  a  treaty  is  on 
foot  concerning  the  surrender  of  a  town  or  place,  it  is  lawful 
to  finish  or  repair  the  fortifications  thereof.  Zouch,§  after  him, 
adopts  the  same  opinion.  But  Ferdinand  thought  otherwise, 

*  Vol.  1.  Consil.  11. f  Aitz.  1.  1. 

t  De  Jure  Belli,  1.  2  c.  18. 
$  De  Jure  Fee.  p.  2.  §  10.  Q.  10, 
[2  B 


194  TREATISE  ON  THE  LAW  OF  WAR. 

who,  after  the  surrender  of  Reggio,  precipitated  the  French 
on  that  very  account  from  the  top  of  the  walls;*  and  when  the 
Spaniards,  who,  in  1622,  were  besieging  Bergen,  during  a 
truce  which  had  been  granted  to  them  to  bury  their  dead, 
completed  their  works,  and  from  thence  reconnoitered  the  for- 
tifications of  the  town,  the  Dutch  complained  that  the  truce 
had  been  broken,  and  that  the  usage  of  war  had  been  violated. f 
It  was,  however,  in  1664,  agreed  at  Bylerschans,  that  the  truce 
should  not  prevent  the  erecting  and  perfecting  of  fortifications 
on  both  sides.:}:  But  it  is  best,  when  a  truce  is  made,  to  suspend 
every  warlike  operation,  for,  such  appears  to  be  the  intent  and 
meaning  of  a  truce;  otherwise,  it  would  be  very  difficult  to  de- 
fine it. 

VI.  Governments  are  not  bound  to  repair  every  loss  that  is 
occasioned  by  the  calamities  of  war. 

When  the  bishop  of  Munster,  in  1665  and  1666,  had  taken 
and  laid  waste  certain  places  in  Over-Yssel,  and  the  French, 
who  had  come  to  the  assistance  of  our  countrymen,  had  not 
behaved  with  much  more  moderation,  the  people  of  Over- 
Tssel  applied  to  the  states-general  to  be  indemnified  for  the  da- 
mage which  they  had  suffered,  but  the  counsellors  having  been 
consulted  on  that  subject,  gave  it  as  their  opinion,  that  no  in- 
demnity ought  to  be  given,  except  for  the  deficiency  suffered 
in  their  taxes  and  contributions,  in  proportion  to  the  time 
during  which  the  places  had  been  occupied  by  the  enemy.§ 
As  to  the  remainder,  it  was  to  be  imputed  to  fate,  and  was 
one  of  those  calamities  of  war  which  must  be  supported  by 
those  on  whom  they  happen  to  fall. 

Afterwards,  however,  the  same  counsellors,  having  some- 
what changed  their  opinion,  thought  that  an  indemnity  ought 
to  be  allowed  to  the  inhabitants  of  Over-Tssel  for  other  things, 
and  particularly  for  the  money  which  they  had  been  obliged 
to  raise,  to  save  their  towns  from  threatened  conflagration. || 
Agreeably  to  this  latter  opinion,  the  states  of  Holland  gave 
their  vote  on  the  2Tth  of  February  1667.^}  I  think  that  they 

*  Gentil.  ubi  suprA. f  Aitz.  1.  1. J:  Aitz.  1.  44 $  Aitz.  1.  46. 

I)  Aitz.  1.  46. K  Ibid.  1.  47. 


TREATISE  ON  THE  LAW  OF  WAR.  195 

were  wrong,  as  far  as  concerned  the  monies  levied  on  the  in- 
habitants, to  redeem  the  towns  from  conflagration;  for,  al- 
though it  is  certain,  that  that  money  actually  saved  them  from 
being  destroyed  by  fire;  still  it  was  not  just,  that  the  other  confe- 
derates should  bear  the  loss,  who  had  not  been  exposed  to  the 
risk  of  perishing  in  that  manner.  For,  nobody  will  venture 
to  say,  that  a  whole  fleet  ought  to  contribute,  if  a  single  ship  is 
obliged  to  have  recourse  to  jettison,  for  her  own  safety. 

VII.  Relates  solely  to  the  right  of  the  several  provinces  of  the 
Dutch  confederation  to  make  peace,  as  incident  to  that  of  making 
war.  It  is  entirely  local,  and  therefore  is  omitted  in  this  trans- 
lation. 

VIII.  One  who  resides  in  an  enemy 's  country,  under  a  safe 
conduct  from  the  sovereign,  may  sue  and  be  sued. 

It  has  been  questioned,  whether,  if  a  safe  conduct  is  granted 
to  an  enemy  to  come  into  our  country,  he  may  be  sued  here 
by  his  creditors.  It  was  so  decreed  by  the  court  of  Holland, 
in  1588,  and  their  judgment  was  confirmed  by  the  supreme 
court,  on  the  18th  of  September  1590.  Those  decrees,  I  think, 
were  perfectly  just;  because,  the  safe  conduct  given  to  an 
enemy,  is  only  to  protect  him  against  hostile  acts;  he  becomes, 
by  virtue  of  it,  as  it  were,  a  neutral,  and  neutrals  may  be  sued 
and  detained  for  their  debts.  At  the  same  time,  if  we  permit 
enemies  to  be  sued,  we  must  not  prevent  them  from  pro- 
secuting their  demands  against  us  in  a  course  of  law,*  as  I 
have  discussed  more  at  large  in  a  former  chapter,  f 

IX.  A  safe  conduct  to  go  into  or  pass  through  the  enemy's 
country,  is  no  protection  out  of  the  enemy's  territory. 

A  safe  conduct,  in  time  of  war,  is  given  for  no  other  pur- 
pose than  that  the  party  may  safely  come  into  the  enemy's 
territory,  and  continue  there.  Wherefore,  I  am  astonished, 
that  lawyers  should  have  doubted,  whether  he,  who  has  a  safe 

*  In  England,  in  a  plea  of  alien  enemy,  the  defendant  must  not  only  state 
"  that  the  plaintiff  was  born  in  a  foreign  country,  in  enmity  with  Great- 
Britain"  hut  "  that  he  is  not  residing  in  the  British  dominions  under  letters  of 
safe  conduct  from  the  king."  Casseres  v.  Bell,  8  Term  Rep.  166.  T- 

\  Above,  c.  7.  p.  55,  56. 


196  TREATISE  ON  THE  LAW  OF  WAR. 

conduct  to  pass  through  the  enemy's  territory,  may  be  taken 
in  his  own  country  by  the  law  of  war.  This  question  was 
agitated  in  the  case  of  the  marquis  of  Messarano,  who  had  re- 
ceived a  safe  conduct  from  the  Spaniards  to  go  from  his  own 
castle  to  Venice,  passing  through  the  Spanish  Milanese  terri- 
tories; but  before  he  sat  out  on  his  journey,  the  castle  was 
taken  by  the  Spaniards,  and  himself  made  prisoner.  It  was 
asked,  whether  he  was  exempted  by  his  safe  conduct  from 
paying  any  ransom?  Bellus,  who  himself  sat  as  judge  in  the 
cause,  did  not  venture  to  decide  any  thing,  as  he  relates 
himself  in  his  treatise  De  Re  Militari;*  neither  does  Zouch, 
agreeably  to  his  custom,  give  any  opinion  on  the  point.f 
But  Menochius\  distinguishes,  whether  the  marquis  was  then 
ready  for  his  journey,  or  whether  he  was  not;  in  the  first  case, 
he  thinks  that  the  safe  conduct  would;  in  the  second,  that  it 
would  not  have  availed  him.  The  doubts  of  Bellus  and  Zouch 
nppear  to  me  as  silly  as  the  decision  of  Menochius.  The 
marquis's  castle  and  territory  being  invaded  by  the  Spaniards, 
he  was  himself  most  lawfully  a  prisoner;  because  he  had  only 
asked  for  a  protection  in  the  enemy's  territory,  and  not  in  his 
own,  nor  had  he  stipulated  for  a  peace  or  a  truce,  but  merely 
for  a  passage  through  the  Milanese  country  into  the  territory 
of  Venice.  Whatever,  therefore,  was  not  within  that  particular 
object,  was  to  be  decided  by  the  law  of  war. 

X.  It  is  unjust  to  compel  a  sovereign  to  make  war  or  peace. 

As  it  is  unjust  to  force  a  prince  to  make  war  against  his 
will,  it  is  so  likewise,  to  compel  him  to  make  peace.  But, 
when  the  states-general,  on  the  one  hand,  were  afraid  of  the 
French,  and  the  great  men  of  England,  on  the  other,  were  dis- 
pleased with  the  extent  of  the  territory  of  France,  the  kings  of 
England  and  Sweden  and  the  states-general,  made  a  treaty  on 
the  23d  of  January  1668,  in  which,  among  other  things,  they 
stipulated,  that  the  Spaniards,  who  were  then  at  war  with  the 
French,  should  be  compelled  to  accept  of  certain  conditions, 

*  P.  9.  No.  15,  &  seq. 

+  De  Jure  Fee.  p.  2.  $  9.  Q.  19. 

|  De  arbitr.  judic.  quxst.  1.  2.  cent.  4.  cas.  336.  n.  19,  &  seq. 


TREATISE  ON  THE  LAW  OF  WAR.  197 

pi-escribed  by  the  said  treaty;  and  that  after  they  had  accepted 
them,  if  the  king  of  France  should,  nevertheless,  continue  to 
make  war  upon  Spain,  the  allies  should  interfere  in  an  hostile 
manner;  and  thus,  the  French  and  Spaniards  -were  COMPELLED 
to  make  peace. 

In  another  instance,  when  it  was  not  thought  proper  for  the 
welfare  of  Europe,  that  the  king  of  Sweden  should  also  possess 
Denmark,  the  French,  the  English  and  the  states-general,  on 
the  21st  of  May  1659,  forced  the  king  of  Sweden  to  make 
peace  with  the  Danes,*  and  thus  saved  the  king  of  Denmark 
from  total  ruin,  to  which  he  was  exposed  in  consequence  of 
having  excited  a  neighbour  more  powerful  than  himself. 

These  are  real  injuries,  cloaked  with  the  pretence  of  a  wish 
to  make  peace;  a  pretence  which  has  been  used  to  cover  in- 
juries of  a  much  greater  magnitude,  which  have  been  fashion- 
able for  some  years  past;  for,  princes,  in  their  treaties  with 
each  other,  have  been  in  the  habit  of  disposing  of  the  do- 
minions and  territories  of  other  sovereigns  as  if  they  were 
their  own.  Such  injuries  are  the  offspring  of  what  is  called  the 
reason  of  state:  *>> 

Monstrum  horrendum,  informe,  ingens,  cui  lumen  ademptum. 

If  governments  will  yield  to  that  monster,  and  indulge  them- 
selves in  following  its  dictates,  and  considering  the  property  of 
other  nations  as  their  own,  it  is  idle  and  useless  to  investigate 
any  more  the  law  of  nations,  or  discuss  its  principles. 

*  Aitz.  1.  4a 


THE  END 


ERRATA. 

Page  4,  note  $,  line  2,  for  "  first  consul,"  read  emperor. 

Page  21,  dele  note  J.  It  was  a  mere  newspaper  account,  which  was  not 
confirmed,  and  ought  not  to  have  had  a  place  in  this  work. 

Page  31,  dele  note  *,  and  in  lieu  thereof,  insert  a  reference  to  p.  87. 

Page  46,  line  10,  for  "  Paul,"  read  Paulus. 

Page  71,  in  the  note,  3d  line  from  the  bottom,  after  "  lord  Hawkesbury" 
read  now  carl  of  Liverpool. 

Page  82,  note  f,  line  7,  for  "  any,"  read  my. 

Page  91,  note  \.  This  note  is  not  sufficiently  clear,  having  been  written 
in  too  much  haste.  It  was  enough  to  have  observed,  that  our  author  does 
not  seem  to  have  sufficiently  attended  to  the  distinction  established  by  the, 
edict  to  which  he  refers  between  neutral  vessels,  which,  after  leaving  a 
blockaded  port,  go  voluntarily  into  their  own  or  some  other  free  port,  or  go 
into  such  port  on  being  chased  and  to  avoid  pursuit;  in  the  second  case,  they 
are  lawfully  captured,  if  met  with  coming  out  of  such  port;  and  it  makes  no 
difference,  whether  it  is  the  port  of  their  actual  destination,  another  port  of 
their  own  country,  or  some  other  free  or  friendly  port.  Our  author  seems  to 
think,  that  it  does  make  a  difference,  and  this  mistake  leads  him  into  an  un- 
necessary discussion  about  words. 

Page  118,  note  *,  line  4,  for  "  for,  of  other  rights  he  may  judge  as  if  no 
war  existed,"  read  "  for,  of  other  rights,  unconnected  -with  the  luar,  or  its  ob- 
jects, he  may  judge  as  if  no  war  existed." 

Page  120,  the  note  of  reference  *  ought  to  be  placed  after  the  words 
"  commercial  intercourse,"  in  the  fourth  line  from  the  bottom  of  the  text. 

Page  131,  note  J,  first  line,  for  "  26th  of  January"  read  20th  of  January. 

Page  148,  in  the  note,  line  7,  for  "  3000  rials  de  vellon,  equal  to  g!500," 
read  60,000  rials  de  vellon,  equal  to  §3000 — an(j  a(](j>  tjlat  t^e  amount  of 
that  security  may  be  moderated  at  the  discretion  of  the  officers  of  the  admiralty, 
according  to  the  size  of  the  privateers,  and  the  number  of  men  and  guns  lahicfi. 
they  respectively  carry. 

Page  183,  note  §,  first  line,  for  "  may,"  read  might. 

Page  186,  line  12,  in  note,  for  "treaty  of  Utrecht,"  read  "treaty  of 
peace  of  Utrecht." 

Subjoin  the  mark  T.  to  the  following  notes: 

*  and  t  p.  105— f  p.  106— §  p.  114— {  p.  115— \  p.  125— and  in  a  few 
copies  of  this  work,  to  notes,  §  p.  184— t  P- 187,  an^  *  P-  188. 


A  TABLE 

Of  the  Titles  Contained  in  the  Index. 


ACTIONS  and  Credits  of  an  Ene- 
my, 

Actions  at  Civil  Law, 
Aitzema, 
Algerines, 
Alien  Enemy, 
Allies, 

Ancient  Writers  on  Maritime  Law, 
Arms, 

Army. 

i 

Bays, 

Barbary, 

Bergen, 

Besieged  Place,s, 

Blockade, 

Bottomry. 

Camps, 

Captains  of  Privateer  Ships, 

Captures, 

Casus  Foederis, 

Choses  in  Action, 

Civil  Law, 

Civil  Rights, 

Commerce, 

Commission, 

Conclusiveness  of   the  Sentences  of 

Foreign  Prize  Courts, 
Confiscation, 
Conquered  Countries, 
C»nsolato  del  Mare, 


Contraband, 

Contracts  at  the  Civil  Law. 

Declaration  of  War, 
Deserters, 

Dominion  of  the  Sea, 
Dutch. 

Enemies, 

Enemy's  Goods, 

English, 

Enlisting  in  Foreign  Service, 

Enlisting  men  on  Foreign  Territory, 

Expatriation. 

Fishery, 

Fleet, 

Foreign  Laws, 

Foreign  Sentences, 

Fraud, 

Freight, 

French, 

Fortifications,. 

Generosity, 
Goods  and  Chattels, 
Governments. 

Holsters. 

Immovables  situate  in    an  Enemas 

Country, 
Insurance  (Contract  of) 

f2C 


202 


TABLE  OF  TITLES. 


Insurance  of  Enemy's  Property,  and 

of  Trade  with  Enemies. 
Joint  Capture, 
Jurisdiction, 
Jus  Pignoris, 
Justice. 


Lands, 

Land  Forces, 

Lawful  Goods, 

Law  of  Nations, 

Laws, 

Leghorn, 

Letters  of  Marque  and  Reprisal, 

Lien. 

Maritime  Loan, 
Military  Rights. 

Neutrals, 

Neutral  Forts, 

Neutral  Goods, 

Neutrality, 

Neutral  Port, 

Neutral  Ships, 

Neutral  Territory, 

Non-commissioned  Privateers. 

Occupation, 

Orders, 

Owners  of  Privateers. 

Perfidy, 

Piracy, 

Pirates, 

Postliminy  (Right  of) 

Prsesidia, 


Prisoners, 
Privateers,  , 
Prizes, 
Prize  Courts, 
Promises, 
Property. 

Reason, 

Reason  of  State, 
Recapture, 
Reprisals, 
Retaliation, 
Roman  Law. 

Saddles, 

Safe  Conduct, 

Salute, 

Salvage, 

Santerna, 

Securities  of  Privateers, 

Sentence  of  Condemnation, 

Ship, 

Spaniards, 

Straceha, 

Swords,  Hilts  and  Belts. 

Tobacco, 

Trade  with  Blockaded  or  Besieged 

Places, 

Trading  with  Enemies, 
Treaties, 
Tripolilans,  Tunisians. 

United  Provinces  of  the  Netherlands. 
Van  Tromp  (Admiral). 

War, 

Warlike  Stores. 


INDEX 

TO  THE 

TEXT  AND  NOTES. 


ACTIONS    AND    CREDITS   OF 

AN  ENEMY 

1VI  AY  be  lawfully  confiscated         51 

But  the  advantage  and  security  of  com- 
merce has  induced  in  Europe,  a  ge- 
neral relaxation  from  this  severity 

57 

Stipulation  on  this  subject,  between 
Great  Britain  and  the  United  States 

52 

Actions  and  credits  not  confiscated, 
ifiso  jure,  there  must  be  a  judgment 
of  condemnation;  otherwise  they  re- 
turn to  the  first  owner,  after  the 
war  5  7 


ACTIONS  AT  CIVIL  LAW. 

Actio  negotiorum  gestorum  42 

de  fiaufierie  1 49 

noxalis  ibid. 

exercitoria  1 50 

institona  ibid. 


AFRICA. 

The  Algcrines,  Tunisians  and  Tripoli- 
tans,  and  other  nations  inhabiting 
the  coast  of  Barbary  in  Africa,  not 
to  be  considered  as  pirates  131 

They  have  a  regular  government  of 
their  own,  send  and  receive  ambas- 
sadors, and  make  treaties  132 

Make  slaves  of  their  prisoners     ibid. 

The  Spaniards  make  slaves  of  them 
in  like  manner  ibid. 

The  Dutch  sell  them  to  the  Spaniards 
to  be  made  slaves  of,  but  do  not 
keep  them  in  slavery  at  home  21, 

133 


AITZEMA. 

Character  of  his  book,  Of  Matters  of 
State  and  War  25 

ALGERINES. 
See  Africa. 

ALIEN  ENEMY. 

Residing  in  a  country,  under  alicense 
from  the  sovereign,  may  sue  and 
be  sued  195 

In  England,  a  plea  of  alien  enemy  must 
negative  the  fact,  that  the  alien  is 
residing  under  a  safe  conduct  ibid. 

See  Enemies.  Safe  Conduct. 

ALLIES. 

Considered  as  one  state  71,  115 

What  is  to  be  done  by  a  state  bound  by 
conflicting  alliances?  70 

Remarkable  instance  of  two  nations  at 
the  same  time  in  alliance  and  at  war 
with  each  other  125 

Territories  belonging  to  an  ally,  and 
reconquered  from  the  common  ene- 
my, to  be  restored  ibid. 


ANCIENT  WRITERS  ON  MARI- 
TIME LAW 

Treated  with  disrespect  by  the  author 

44,  171 
Vindication  of  their  character        17  I 

ARMS. 

By  the  Roman  law,  individuals  were 
not  allowed  to  manufacture  arms, 
without  a  special  permission  from 
the  government  98 


204 


INDEX. 


Now  arms  may  be  sold  at  home  to 
belligerents,  by  the  subjects  of  a 
neutral  state  178 

But  must  not  be  carried  by  neutrals  to 
the  belligerent's  country  ibid. 

Much  less  to  a  besieged  town  or  block- 
aded port  82 

See  Contraband.  Blockade. 


ARMY, 

Wherever  it  may  be,  is  considered  in 
many  respects,  as  afiraesidium  of  the 
sovereign  to  whom  it  belongs  1 1 7 

May  keep  under  confinement  the  pri- 
soners which  they  have  with  them, 
on  neutral  territory  ibid. 

See  Prasidia.  Prisoners. 


BAYS 

Are  considered  as  a  part  of  the  adja- 
cent territory  60 

Case  of  the  ship  Grange,  captured  in 
the  bay  of  Delaware  ibid. 

BARBARY.  N 

See  Africa. 

BERGEN. 

Capture  by  the  English,  of  Dutch  East 
India  ships  in  the  port  of  6 1 

BESIEGED  PLACES. 

See  Trade  with  blockaded  and  besieged 
Places. 

BLOCKADE 

Is,  according  to  Grotius,  the  situation 
of  ports  shut  or  closely  invested  by 
an  armed  force  82 

The  modern  idea  of  universal  block- 
ade, not  formerly  entertained  84 

The  Dutch,  however,  once  boasted  of 
having  blockaded  all  the  British  do- 
minions 31 

But  there  was  no  foundation  for  that 
boast  ibid. 

The  fiflaniards  also  pretended  to 
blockade  all  the  Portuguese  territo- 
ries ibid. 


And  the  English  those  of  Sfiain       92 
But  the  right  was  always  controverted 
and  denied  31,  92 

See  Trade  with  Blockaded  and  Besieg- 
ed Places. 

BOTTOMRY. 

By  the  Roman  law,  the  bottomry  or 
respondentia  creditor  does  not  lose 
the  benefit  of  his  pledge  by  thecon- 
fiscation  of  the  ship  or  cargo  98 

Nor  by  the  law  of  nations,  when  con- 
fiscation is  merely  ex  re,  and  not 
ex  delicto  8  I 

Nor  when  the  ship  or  cargo  are  ran- 
somed or  given  up  by  the  captor  192 

See  Confiscation.  Jus  Pignoris.  Mari- 
time JLoan. 


CAMPS 

May  be  besieged  as  well  as  towns  85' 


CAPTAINS  OF  PRIVATEER 
SHIPS 

Cannot  enter  into  a  partnership  to- 
gether, as  to  the  captures  which 
they  may  make,  without  the  con- 
sent of  their  owners  141 

Various  decisions  of  the  courts  of 
Holland  thereon  ibid. 

Responsible  in  cases  of  unlawful  cap- 
ture or  depredation  at  sea,  to  the 
whole  extent  of  the  injury  suffered, 
not  merely  to  the  amount  of  the  se- 
curity given  14K 

See  Privateers.  Owners  of  Privateers. 

CAPTURES 

Made  by  pirates,  do  not  effect  any 
change  of  property  12T 

Made  by  vessels  not  commissioned, 
iire  considered  in  Great  Britain  and 
France,-^  Droits  of  admiralty  162 

Examination  on  general  principles,  of 
the  respective  claims  of  the  owners, 
freighters,  and  master  and  mariners 
of  the  capturing  vessel,  to  the  bene- 
fit of  such  captures,  when  made  in 
their  own  defence,  or  otherwise,  in 
a  justifiable  nmnr.cr  I5.i 


INDEX. 


205 


Decision  of  the  author  thereon       156 
Arguments  in  support  of  it  158 

Decision  of  the  supreme  court  of  the 
United  States  in  an  analogous  case 
of  salvage  ibid. 

Property  captured,  and  afterwards  ran- 
somed or  given  up  by  the  enemy, 
is  not  thereby  liberated  from  the 
claims  of  the  insurer  or  lender  at 
maritime  risk  192 

See  Property.  Pirates,  Privateers. 
Recafiturc. 


CASUS  FCEDERIS. 

See  Treaties  of  Defensive  Alliance. 


CHOSES  IN  ACTION. 

See  Actions  and  Credits. 

CIVIL  LAW. 

See  Contracts  at  the  Civil  Law.  Ac- 
tions at  Civil  Law.  Roman  Laiv. 
Law  of  Nations. 


CIVIL  RIGHTS 

Distinguished  from  military  rights 

116 
See  Military  Rights. 


COMMERCE 

Ceases  ipso  jure  between  enemies  23 

Sometimes  permitted  on  both  sides  in 
war  5  5 

Which  state  of  things  is  a  middle  state 
between  war  and  peace  25 

But  how  when  the  same  trade  which 
is  carried  on  between  the  bellige- 
rents, is  prohibited  to  neutrals?  ibid. 

See  Trade  ivith  Enemies.  Trade  with 
Blockaded  and  Bcsiezed  Places. 


COMMISSION. 

Irregular  in  a  subject  to  accept  a 
commission  from  a  foreign  sove- 
reign, without  the  permission  of  his 
own  130 


Made  penal  by  the  law  of  the  United 
States  129 

Different  punishment,  if  commission 
is  received  within  or  without  the 
limits  of  the  United  States  ibid. 

See  letters  of  Marque  and  Reprisal. 
Privateers.  Piracy.  Pirates. 


CONCLUSIVENESS  of  the  SEN- 
TENCES of  FOREIGN  PRIZE 
COURTS. 

Effects  of  that  doctrine  in  England  and 

the  United  States  169 

Originated  in  misapprehension  and 

mistake  168 

Reprobated  by  Lords  Thurlow  and 

Ellenborough  1 69 

Exploded  in  Pennsylvania  and  New 

York  ibid. 

Evaded  in  England,  and  how  ibid. 


CONFISCATION, 

The  only  penalty  at  present  for  carry- 
ing contraband  goods  to  the  enemy 

74,  75 

Extinguishes  every  prior  lien         32 
Except   when    the   property  is   only 
condemned  ex  re,  and  not  ex  de- 
lie  to  ibid. 


CONQUERED  COUNTRIES 
Pass  cum  onerc,  in  the  same  manner 
as  lands  purchased  191 


CONSOLATO  DEL  MARE. 

Styled  a  farrago  of  nautical  laws     44 
Vindicated  1 7 1 


CONTRABAND. 

Contraband  articles  are  those  which 
are  proper  for  war,  although  they 
may  be  used  out  of  war  77 

Such  are  arms,  warlike  stores,  and 
materials  of  themselves  fit  to  be 
used  in  war  78 


INDEX. 


But  not  materials  which  are  NOT  of 
themselves  fit  for  warlike  use,  but 
might  easily  be  adapted  to  it  78 

Grotius's  distinction,  as  to  articles 
which  are  contraband  75 

Provisionsnotcoritrubund,  unless  when 
curried  to  a  place  besieged,  or  ol/ie r- 
ivise  pressed  by  famine  69,  73 

Observation  on  the  word  otherwise 

ibid. 

It  was  formerly  a  capital  crime  at 
Rome  to  sell  arms  to  the  barbari- 
ans 74 

Now  contraband  goods  are  forfeited 
\v4ien  taken  in  the  act  of  carrying 
to  the'enemy  76 

Confiscation  of  the  goods  is  in  such 
cases  the.only  penalty  74,  75 

The  ship  itself  is  not  confiscated     95 

Nor  the  innocent  goods,  mixed  with 
the  contraband  articles  96 

Unless  they  belong  to  the  same  owner 
with  the  prohibited  goods  97 

See  Provisions.  Sword  Hilts  and  Belts. 
Holsters.  Saddles.  Tobacco.  Shifis. 


CONTRACTS  AT  THE  CIVIL 
LAW. 

Locatio  ojierum  163 

rcrum  ibid. 

Quasi-contract  negotiorum  gestorum 

42 


DECLARATION  OF  WAR, 

Not  required  by  the  law  of  nations    7 
Customs   of  various  nations  on   this 
subject  9 

Precedents  in  modern  times       11,  16 
Notice  to  enemy's  subjects  to  with- 
draw 12 
See  War. 


DESERTERS, 

Question  about  delivering  up,  not  yet 
settled  in  Kurotie  174 

flubncr  and  Cialiari'a  opinions  there- 
on 174 


Those  who  promote  desertion,  not 
less  guilty  than  the  deserters  them- 
selves 174 


DOMINION  OF  THE  SEA, 

Coextensive  with  the  power  of  arms 

from  the  land  59 

Claimed  by  the  English  nation         92 

See  Bays.  Neutral  Territonj.  Englisft. 


DUTCH, 

Bo-ust  of  blockading  the  whole  of  the 
British  dominions  31 

Deny  the  same  right  to  the  Spaniards, 
with  respect  to  Portugal  ibid. 

Retaliate  on  the  French,  who,  while 
in  alliance  with  them,  refused  to 
restore  Dutch  property,  recaptured 
from  the  common  enemy  120 

Retaliate  on  neutrals  the  injuries  re- 
ceived from  their  enemies  61,  86 

Their  conduct  approved  of  by  our  au- 
thor ibid. 

Contrary  to  his  own  principles  33,  86 

Forbid  their  enemy's  armed  vessels 
from  approaching  their  shores,  un- 
less supported  by  a  fleet,  under  the 
penalty  of  being  treated  as  pirates 

131 

Confiscate  their  vessels  purchased  by 
neutrals  after  condemnation  in  the 
enemy's  country  29 

Capture  and  confiscate  S/ianish  ves- 
sels covered  by  the  English  flag 

111 

The  Englifih  seize  their  vessels,  by 
way  of  retaliation  1 12 

Refuse  to  admit  certain  districts  and 
towns  into  their  union  after  recon- 
quering them  from  the  enemy  123 

Complain  to  the  king  of  England  of 
the  conduct  of  the  Ostend  privateers 

137 

Refuse  to  restore  to  the  Portuguese, 
their  allies,  countries  reconquered 
from  the  common  enemy  125 

Are  in  alliance,  and  at  the  same  time 
at  war  \viih  Portugal  ibid. 


INDEX. 


207 


ENEMIES. 

Every  thing  lawful  against  2 

May  be  put  to  death  1 9 

Were  formerly  sold  into  slavery      20 

Were  made  prisoners  among  the 
Romans  when  found  on  their  terri- 
tory at  the  commencement  of  a  war 

21 

Rarely  done  in  our  times,  though 
the  right  still  exists  19,  20 

Modern  European  manners  have 
put  an  end  to  the  summum  jus  of 
war  2 1 

Prisoners  are  now  exchanged  ac- 
cording to  their  grades  ibid. 

Some  nations  still  make  slaves  of 
their  prisoners  ibid. 

Compliments  and  civilities  between 
enemies  18 

The  body  of  an  enemy  delivered  up 
for  interment  23 

Enemy  has  no  persona  standi  inju- 
diczo,  and  cannot  sue  in  courts  of 
justice  55 

Unless  he  resides  in  the  enemy's 
country,  with  a  safe  conduct  from 
the  sovereign,  or  for  a  debt  con- 
tracted in  commerce  allowed  by  the 
sovereign  55 

Where  he  can  sue,  he  may  also  be 
sued,  and  vice  versa  56,  195 

See  Alien  Enemy.  Actions  and  Credits. 
Safe  Conduct.  Prisoners.  Enemy's 
Goods.  Africa.  Dutch.  Spaniards. 


ENEMY'S  GOODS 

Found  in  our  country  at  the  com- 
mencement of  a  war  may  be  con- 
fiscated 1 1 

Without  any  declaration  or  notice  ibid. 

Unless  otherwise  provided  for  by  trea- 
ty 13 

Various  instancesof  such  treaties  ibid. 

-May  lawfully  be  taken  when  found  on 
board  of  a  neutral  ship  109 

But  the  neutral  who  carries  the  goods 
is  guilty  of  no  offence  against  the 
law  of  nations  108 

The  goods  are  confiscated,  not  ex  de- 
li c  to,  but  ex  re  111 


And  therefore  freight  is  paid  thereon 
to  the  neutral  master  1 1 1 


ENGLISH. 

Generous  act  of  their  government, 
in  giving  Notice  to  the  Emperor  of 
France  of  a  design  to  assassinate 
him  4 

Prohibit  all  trade  with  the  Spaniard* 

92 

Found  that  prohibition  on  their  claim 
to  the  dominion  of  the  sea  93 

Lend  their  flag  to  the  Spaniards  at 
war  with  the  Dutch,  and  highly  re- 
sent the  condemnation  of  the  co- 
vered property  .  Ill 

Guided  in  their  judicial  decisions 
by  considerations  of  state  policy 

38,  145,  167,  172,  189 

Capture  Dutch  East  India,  ships  in 
the  port  of  Bergen  6 1 

Proceed  against  a  French  and  a  Spa- 
nish privateer  as  being  pirates 

134,  136 

Do  not  permit  the  expatriation  of 
their  subjects  175 

Sec  Blockade.  Expatriation.  Conclu- 
siveness  of  the  Sentences  of  Foreign 
Prize  Courts. 


ENLISTING  IN  FOREIGN  SER- 
VICE. 

Unlawful  to  enlist  into  the  service  of 
an  enemy  177 

Prohibited  by  Dutch  edicts  ibid. 

Severe  punishment  inflicted  by  the 
Dutch  on  those  who  should  enter 
into  the  naval  service  of  the  enemy 

ibid. 

But  a  subject  or  citizen  may  enter 
into  the  service  of  a  friendly  sove- 
reign, where  no  prohibition  exists 
to  the  contrary  ibid. 

American  citizens  prohibited  by  statute 
from  enlisting  (within  the  limits 
of  the  United  States')  into  the  land 
or  naval  service  of  any  sovereign 
print  t  17l> 


208 


INDEX. 


Or  abroad,  to  serve  on  board  of  foreign 
privateers  129 

See  JLxfiatriation. 


ENLISTING  MEN  ON  FOREIGN 
TERRITORV. 

Not  lawful  to  entice  away  soldiers  from 
the  service  of  another  prince  174 

Nor  to  enlist  private  individuals  on 
foreign  territory,  contrary  to  the 
prohibition  of  their  own  sovereign 

ibid. 

But  where  no  such  prohibition  exists, 
mennotinthe  actual  service  of  their 
prince  may  be  enlisted  175 

No  difference  in  principle  between 
enlisting  men  and  purchasing  war- 
like stores  178 

Treaty  on  this  subject  between  the 
Romans  and  dntiochus  ibid. 

Enlistments  for  foreign  service  pro- 
hibited in  Holland  179 

And  in  the  United  States,  with  the 
exception  of  transient  foreigners, 
subjects  of  the  prince  into  whose 
service  they  are  enlisted  ibid. 

Difference  between  the  Dutch  and 
Sfianiards  on  this  subject  180 


EXPATRIATION 

Lawful,  wherever  the  country  is  not 
a  prison  175 

Not  lawful  among  the  Muscovites, 
English,  and  Chinese  ibid. 

Prohibited  in  France,  by  Louis  XIV. 

ibid. 

But  was  lawful  there  before          ibid. 

Was  prohibited  on  account  of  the  pro- 
testants  ibid. 

Is  lawful  by  the  constitution  of  Penn- 
sylvania, ibid. 

And  by  the  law  of  the  United  Slatca, 
when  bona  fide,  and  under  such  cir- 
cumstances as  not  to  endanger  the 
safety  of  the  state  176 

Provided  it  is  not  otherwise  provided 
by  the  law  of  the  state  from  which 
*he  citi/en  cmiy  rates 


An  expatriated  citizen  is  considered 
as  an  alien  for  commercial  pur- 
poses 176 

Quaere,  whether  an  American  citizen 
can  expatriate  himself  otherwise 
than  in  the  manner  which  may  be 
prescribed  by  our  own  laws;  and 
whether  his  expatriation  will  be 
sufficient  to  rescue  him  from  pun- 
ishment for  a  crime  committed 
against  the  United  States?  ibid. 


FISHERY. 

Herring   fishery  permitted  on  both 

sides,    between    the    French  and 

Dutch  during  war  25 


FLEET, 

Wherever  it  may  be,  is  considered 
in  many  respects  as  a  iirx sidium  of 
the  nation  to  whom  it  belongs  117 

See  Pr&sidia. 


FOREIGN  LAWS. 

Respect  to  be  paid  to  130 

In  the  United  States  and  Great  Bri- 
tain no  regard  is  paid  to  the  re- 
venue laws  of  other  countries    131 
Various  opinions  on  this  subject  ibid. 


FOREIGN  SENTENCES. 

See  Conclusiveness  of  the  Sentences  of 
Foreign  Prize  Courts. 


FRAUD, 

In  matters  of  insurance,  assimilated 
to  piracy  by  the  law  of  Holland   1 3 1 


FREIGHT, 

Not  allowed  to  the  master  of  a  neutral 

vessel  on  contraband  goods          81 

SCCKH  on  enemy's  goods  ibid. 

Reason  of  this  difference  85 


INDEX. 


209 


Not  allowed  to  the  captor  of  an  ene- 
my's vessel  in  right  of  the  master, 
unless  he  has  carried  the  goods  to 
the  place  of  their  destination  105 

Or  in  certain  cases,  when  brought  to 
the  claimant's  own  country  ibid. 

Not  merely  allowed  pro  raid  itineris, 
but  as  if  the  whole  voyage  had  been 
performed  112 


FRENCH, 

Pursue  a  Spanish  ship  into  Torbay, 
and  invade  the  houses  of  the  in- 
habitants to  take  the  articles  which 
the  Spaniards  had  concealed  there 

65 

Refuse  to  restore  to  the  Dutch,  their 
allies,  their  property  recaptured 
from  the  common  enemy  1 19 

The  Dutch  retaliate  120 

Formerly  condemned  a  neutral  ship 
for  having  enemy's  goods  on  board, 
and  neutral  goods  for  being  on  board 
ef  an  enemy's  ship  102 


FORTIFICATIONS. 

Not  lawful  to  erect  or  repair  fortifi- 
cations during  a  truce,  or  pending 
a  capitulation  193 


GENEROSITY 

.Is  a  voluntary  act,  and  cannot  be  re- 
quired from  an  enemy  3 

Exemplified  in  the  conduct  of  the  Ro- 
mans and  English  4 

See  Justice. 


GOODS  AND  CHATTELS 

Of  an  enemy  may  be  lawfully  confis- 
cated 1 7 

May  be  removed  from  the  enemy's 
territory  within  a  certain  time  after 
war  commenced,  when  so  stipulated 
by  treaty  17 

Instances  of  similar  treaties  13 


May  be  otherwise  detained   as  soon 
as  Avar  is  begun  15,  17 

See  War.  Enemies. 


GOVERNMENTS, 

Responsible  to  foreign  states  for  the 
unlawful  conduct  of  their  subjects 
in  war  1 35 

Not  bound  to  repair  every  loss  that 
is  occasioned  by  the  calamities  of 
war  194 


HOLSTERS 
Are  contraband 


79 


IMMOVABLES  SITUATE  IN 
AN  ENEMY'S  COUNTRY 

May  by  the  strict  law  of  war  be  con- 
fiscated 51 

But  are  now  only  sequestered,  and 
the  rents  and  profits  received  for 
the  benefit  of  the  state  ibid. 

The  lands  themselves  return  to  the 
owner  at  the  peace  ibid- 

An  enemy  cannot  acquire  lands  in  his 
enemy's  country,  even  by  will  or 
inheritance  52 

Lands  so  descending,  confiscated  in 
Holland  ibid. 


INSURANCE  (Contract  of) 

Defined  by  the  author  164 

by  Roccus  ibid. 

The   most   frequent  in    commercial 

countries,  after  those  of  purchase, 

sale  and  hire  163 

Not  known  to  the  ancients,  and  why 

ibid. 
The  object  of  this  contract     164,  169 


INSURANCE  OF  ENEMY'S  PRO- 
PERTY, and  of  TRADE  WITH 
ENEMIES, 

;  Illegal  on  general  principles  164 

Impolitic,  as  it  furthers  the  operations 

of  the  enemy  ibid. 


210 


INDEX. 


Prohibited  from  the  earliest  times,  in 
almost  every  country  in  Kurojie  1 65 

Tolerated  for  a  while  by  the  English 
and  Dutch  ibid. 

By  England,  during  the  three  wars 
which  immediately  preceded  the 
French  revolution  ibid. 

Lord  Hardioickt's  and  Lord  Mans- 
Jield's  decisions  on  the  subject  of 
similar  insurances  166 

Dictated  by  political  motives          167 

Overruled  by  later  decisions         ibid. 

The  freedom  of  insurance  ought  to 
be  coextensive  with  the  freedom 
of  trade  1 70 

No  insurance  is  lawful  which  is  made 
on  a  voyage  prohibited  by  the  laws 
of  the  country  172 

Even  though  it  be  made  in  general 
terms  ibid. 

Property  cannot  be  insured  in  En- 
gland against  capture  by  the  cruiz- 
ers  of  Great  Britain,  or  her  co-bel- 
ligerents ibid. 

Reason  given  therefor  by  the  English 
judges  ibid. 

Better  reason  afforded  by  an  American 
judge  ibid. 


JOINT  CAPTURE, 
On  general  principles,  requires  actual 
cooperation  and  assistance  144 

Particularly  between  privateers    ibid. 
But  between  vessels  of  war,  political 
considerations  have  induced  in  some 
countries  the  admission  of  construe  - 
..    true  assistance  145 

French  and  English  law  on  this  sub- 
ject ibid. 
Law  of  Holland  143 
In  cases  of  constructive   assistance, 
the  being  in  sight  at  the   time  of 
capture  is  the  firinci/ial  criterion 

145 

But  is  not  sufficient  in  England,,  in 
favour  of  privateers  claiming  to 
be  joint  captors  with  ships  of  war 

ibid. 

Otherwise  in  favour  of  ships  of  war, 
in  competition  with  privateers  ibid. 


No  precise  English  decision  on  this 
point,  in  a  case  between  privateers 
only  145 

Land  forces  in  England,  not  entitled 
to  share  in  a  capture  without  actual 
cooperation  14$ 


JURISDICTION. 

By  the  law  of  nations,  pirates  may  be 
tried  and  punished  wherever  found 

133 

But  captures  made  by  virtue  of  a  com- 
mission from  a  sovereign  can  only 
be  tried  by  the  tribunals  of  the  cap- 
tor 134 

Reasons  given  by  professor  Ruther~ 
forth  in  support  of  this  doctrine 

13a 

Various  schemes  proposed  for  vesting 
this  power  in  other  tribunals  ibid. 

Hubner  and  Galiani  ibid. 

The  tribunals  of  neutral  sovereigns 
will,  however,  restore  the  property 
of  their  own  subjects  or  citizens, 
brought  into  their  own  ports  136 

And  prizes  made  in  violation  of  their 
neutrality  ibid. 

The  courts  of  the  United  States  have 
done  so  in  various  instances  ibid. 

Act  of  Congress  as  to  captures  made 
within  the  waters  or  jurisdiction  of 
the  United  States  ibid. 


JUS  PIGNORIS, 

Not  extinguished,  according  to  the 

Roman  law,  by  the  confiscation  of 

the  property  pledged  80 

Otherwise  by  the  law  of  nations       81 

Not  so,  however,  when  the  property 

is  confiscated  merely  ex  re,  and  not 

ex  delicto  ibid. 

The  maxim  of  the  civil  law  is  Jiscus 

ccdit  creditorihus  80 

With  us  the  opposite  maxim  prevails, 

et  creditores  crduntJiKCO  ibid. 

See  Freight.  Confiscation. 

JUSTICE 
And  generosity  compared 


INDEX. 


211 


LANDS. 
See  Immovables. 

LAND  FORCES 

Not  entitled  to  participate  in  the  bene- 
fit of  a  capture,  without  actual  co- 
operation and  assistance  146 

See  Joint  Cajilures. 

LAWFUL  GOODS 
Not  to  be  condemned  on  account  of 
their  being  shipped  on  board   the 
same  vessel  with  contraband  goods 

94 

Unless  all  the  goods  belong  to  the 
same  owner  ibid. 

LAW  OF  NATIONS 

Not  to  be  deduced  from  European 
manners  and  customs  11,17 

To  be  deduced  from  reason  and  usage 

76 

Or  an  almost  perpetual  succession  of 
treaties  ibid. 

Its  principles  may  safely  be  sought 
for  in  the  rules  of  Roman  jurispru- 
dence 107 

In  the  discussion  of  general  principles, 
we  are  bound  to  attend  more  to  rea- 
son than  to  treaties  109 

The  rules  of  the  law  of  nations  cannot 
be  dispensed  with  by  individuals 

169 

LAWS, 

To  affect  future,  and  not  past  trans- 
actions 1 70 

LEGHORN, 

Capture  by  the  French  of  an  English 
vessel  near  the  port  of  61 

LETTERS  OF  MARQUE  AND 

REPRISAL 

Is  the  old  technical  name  for  a  priva- 
teer's conimis&ion  183 
Is  often  applied  to  designate  a  mer- 
chant vessel  armed  for  defence  ibid. 
See  Reprisals. 


LIEN. 
See  Jus  Pignoris.   Freight.  Canfisca- 


tion. 


MARITIME  LOAN, 

Or  Loan  at  Maritime  Risk. 
What  it  is  at  the  civil  law  192 

See  Bottomry. 


MILITARY  RIGHTS, 
Distinguished  from  civil  rights      116 
Evidenced  by  possession  only      ibid. 


NEUTRALS, 

Residing  on  the  enemy's  territory, 

to  be  considered  as  enemies         25 

Not  to  interfere  with  the  war,  or  what 

,     relates  to  the  war  67 

Have  nothing  to  do  with  the  justice 

or  injustice  of  the  war     68,  70,  71. 

75 

Unless  threatened  with  danger       70 
Grotius  of  a  different  opinion          67 
Not  to  send  arms  or  men  to  either 
party  68,  70 

May  trade  with  the  belligerents  in 
every  kind  of  merchandize,  except 
contraband,  as  they  did  before  the 
war  76 

May  freely  trade  with  either  bellige- 
rent in  innocent  articles  104 
A  neutral  violating  his  neutrality  is 
considered  by  the   belligerent    as 
an  individual  enemy                       172 


NEUTRAL  FORTS, 

No  act  of  hostility  to  be  committed 
within  reach  of  their  cannon  6? 

Bot  fresh  pursuit  may  be  continued 

ibid. 

Provided  the  fortresses  are  spared, 
though  they  should  assist  the  ene- 
my ibid 

Cannot  lawfully  be  occupied  by  a  bel- 
ligerent, for  fear  his  enemy  .-houk. 
do  the  same  19^ 

Various  opinions  on  this  subject  ibid- 


212 


INDEX. 


NEUTRAL  GOODS, 

On  the  territory  of  a  belligerent,  can- 
not he  made  prize  2.i 

Nor  M-hen  taken  on  board  of  an  ene- 
im'sship  100 

Though  die  owner  knew  her  to  be  a 
hostile  vessel  104 

Are  however  presumed  to  belong  to 
enemies,  until  the  contrary  is  prov- 
ed 101,  104 

And  are  considered  as  good  prize  by 
the  modern  iaw  of  nations  103 

Rule  of  the  Conaolato  on  this  subject 

104 

Old  French  law,  that  the  goods  of  an 
enemy  confiscate  those  of  a  friend 

102 

Grotius  endeavours  to  explain  it  away 

ibid. 

But  Valin  rebukes  him  for  it          103 

Modern  law  of  nations  confiscates 
neutral  goods  on  board  of  an  ene- 
my's ship,  but  leaves  enemy's  goods 
on  board  of  a  neutral  vessel  free 

ibid. 

NEUTRALITY 

Defined  66 

Divided  into  absolute  and  qualified  69 

Difficult  to  draw  the  line  between  a 
qualified  neutrality  and  an  alliance 

69 

Our  author  seems  to  confound  them 
together  75 

No  adequate  word  in  the  Latin  lan- 
guage to  express  neutrality  66 

Its  general  duties  ibid. 

The  Dutch  once  considered  it  lawful 
for  their  subjects  to  fight  for  either 
party  67 

Not  approved  ibid. 

NEUTRAL  PORT. 
Whether  a  prize  may  be  lawfully  con- 
demned while  lying  in  a  118 
See  Prxxidia. 

NEUTRAL  SHIPS. 

Law  of  Holland,  that  neutral  ships 
coming  from  enemy's  ports  might 
be  lawfully  condemned  73 


Was  special,  and  made  for  the  occa- 
sion 7$ 
Explained                                      30, 87 


NEUTRAL  TERRITORY, 

No  hostilities  to  be  committed  there- 
on 58,  64 

Nor  in  neutral  ports  58 

Nor  at  sea  within  reach  of  cannon 
shot  from  the  neutral  shore  59 

But  an  attack  already  commenced 
may  be  pursued  62 

So  that  it  be  done  without  injury  to 
the  neutral  63 

Captures  made  within  the  neutral  ju- 
risdiction to  be  restored  at  the  ex- 
pense of  the  neutral  sovereign  ibid. 

Troops  not  permitted  to  pass  through 
it,  to  commit  depredations  on  a 
friend  64 

See  Van  Tromfi.  Bergen,  Leghorn. 
Bays.  Dominion  of  the  Sea. 


NON-COMMISSIONED  PRIVA- 
TEERS. 

To  whom  their  prizes  are  to  belong 
when  made  in  their  own  defence, 
or  from  some  other  justifiable  cause 

155 

Arguments  of  the  author  to  prove 
that  they  ought  only  to  belong  to 
the  actual  captors  ib'id. 

In  England  and  France,  prizes  taken 
by  non-commissioned  vessels  are 
considered  as  droits  of  admiralty 

162 

See  Captures,  Salvage. 


OCCUPATION 

Of  a  town  or  place  gives  a  legal  pos- 
session of  its  .dependencies  45 

Provided  no  part  thereof  is  occupied 
by  the  enemy  46 

For  there  is  no  jointenancy  in  war 

ibid. 


INDEX. 


21* 


But  the  occupation  even  of  the  metro- 
polis of  an  empire,  does  not  confer 
the  possession  of  distant  dependen- 
cies noi  yet  subdued  49 

Historical  examples  in  point        ibid. 

ORDERS 

In  war  are  strictly  to  be  obeyed     193 


OWNERS  OF  PRIVATEERS, 
Responsible  to  the  whole  extent   of 
the  injury  suffered,  not  merely  the 
amount  of  the  security  given    149, 

153 

Though  the  vessel  is  not   regularly 

commissioned,  if  the  owner  ordered 

her  to  make  captures  153 

See  Privateers.  Captains  of  Privateer 

Shifts. 

PERFIDY, 

Reprobated  in  war  3 

Exemplified  in  the  conduct  of  a  Dutch 

captain  1 5 


PIRACY, 

Various  definitions  of  127,  161 

Difference  between  piracy  by  the  law 
of  nations  and  at  the  common  law 

128 

Quxre,  whether  piracy  by  the  law  of 
nations  merely  is  punishable  by 
the  admiralty  courts  of  the  United 
States  and  Great  Britain  128 

Woiidde&on's  opinion  thereon          129 

By  the  law  of  nations,  the  punishment 
of  piracy  is  Death  1 3  8 

Nor  can  this  punishment  be  mitigated 

138 

Various  offences  made  or  assimilated 

to  piracy  by  municipal  law        128, 

129,  130,  131 

See  Pirates. 


PIRATES 

Are  considered  as  enemies  to  the  hu- 
man race  133 


And  therefore  may  be  tried  and  punish- 
ed by  the  tribunals  of  any  country 
into  which  they  may  be  brought 

133 

Those  are  pirates  and  robbers  who, 
without  the  authorization  of  any 
sovereign,  commit  depredations  by 
sea  or  land  127" 

Those  who  commit  depredations  un- 
der commissions  from  different  so- 
vereigns at  war  with  each  other 
are  pirates  128,  129 

Nevertheless,  the  English  once  pro- 
ceeded against  a  regularly  commis- 
sioned French  privateer  as  a  pirate 

134 

And  in  like  manner  against  a  S/ianish 
privateer  136 

Quxre,  as  to  those  who  sail  under 
commissions  from  different  sove- 
reigns not  at  war  with  each  other 

130 

Various  opinions  thereon  ibid. 

Irregular  to  accept  a  commission  from 
a  foreign  prince  without  the  per- 
mission of  one's  own  government 

130 

Prohibitory  law  of  the  United  States 
thereon  129 


POSTLIMINY,  RIGHT  OF 

Does  not  take  place,  except  as  to  those 
things  which  have  not  become  the 
property  of  the  enemy  39 

Takes  place  when  captured  property 
is  retaken  before  it  is  carried  into  a 
port  of  the  enemy  38 

Or  of  an  ally  in  the  war  37" 

Even  though  it  has  long  remained  in 
a  neutral  port  38 

But  yuxre,  if  it  has  been  condemned 
while  lying  there  ibid.  4i 

Opinion  of  Sir  IVilliam  Scott  and  de- 
cision of  the  supreme  court  of  the 
United  States  on  this  question  ibid. 

After  a  legal  condemnation  every 
former  claim  must  cease  39 

Among  the  Roman*,  applied  princi- 
pally to  persons,  and  why  1 16 

Took  place  in  the  territory  of  an  ally 
or  neutral  1 13 


INDEX. 


Treaty  between  the  Romans  and  Car- 
thaginians 1 14 

Among  the  modern  nations  of  Europe, 
it  is  held  as  a  maxim,  that  there  is 
no  right  of  postliminy  as  to  things 
on  neutral  territory  115 

Distinction  on  this  subject  between 
military  and  civil  rights,  and  the 
manner  in  which  they  are  respec- 
tively evidenced  116 

As  to  prisoners,  the  right  of  postUmi- 
ny  takes  place  even  on  neutral  tcr 
ritory  1 1 7 

Mattel's  and  Loccenius's  opinions  01, 
the  subject  1  17,  1  8 

Is  applicable  to  a  whole  people  as  we:! 
as  to  individuals  122 

When  part  of  a  state,  after  being  con- 
quered by  an  enemy, is  reconquered 
by  the  nation  to  which  it  belonged, 
it  is  entitled  to  all  iis  former  rights 
by  the  luw  of  postliminy  ibid. 

The  Dutch,  however,  refused  to  allow 
that  right  in  several  instances  ibid. 

PRjESIDIA, 

What  it  means  27,  36 

The  ports  of  an  ally  are  prtsidia    38, 

41,  113 

Different  opinion  once  entertained  in 
Holland  38 

A  fleet  is  considered  us  firxsidia  29,  4 1 
So  is  an  army  in  many  respects     1 17 
Neutral  ports,  whether  to  be  consider- 
ed as  prx^idia  38,  41 
Are  so  to  all  purposes  of  safety      1 13 
And  a  belligerent  may  condemn  cap- 
tured property  while  lying  there 

38 
Various  opinions  on  this  point     ibid. 

PRISONERS 

Were  formerly  made  slaves  of       20 

Are  at  present  exchanged,  according 

to  their  grades  21 

PRIVATEERS. 

fitting  out  privateers  to  commit  hos- 
tilities against  a  state  at  peace  with 
us,  made  penal  by  the  law  of  the 

United  Gluten  129 


Or  serving  on  board  such  privateer 

129 

Different  punishment,if  offence  com- 
mitted within  or  without  the  limits 
of  the  United  States  ibid. 

The  subject  of  privateering  belongs  to 
the  law  of  nations  139 

It  is  a  long  time  since  sovereigns  have 
begun  to  make  use  of  privateers  as 
auxiliary  to  the  public  force  140 

They  were  called  Cruisers,  Capers, 
Freebooters  ibid. 

They  are  not  pirates,  because  they 
act  under  the  sanction  of  public 
authority  ibid. 

The  bcin;^  in  sight  at  the  time  of  cap- 
ture, not  sufficient  to  entitle  a  pri- 
vateer to  be  considered  as  a  joint 
c.tpior  144 

Security  given  by  privateers  in  Hol- 
land* Great  firitain,  France,  Spain, 
and  the  United  Stares  147 

As  to  Spain,  turn  to  the  Errata. 

See  Commission.  Joint  Capture. 


PRIZES 

May  be  condemned  in  the  belligerent's 
courts  at  home  while  lying  in  a 
neutral  port  38 

Sir  William  Scott's  opinions  thereon 

ibid. 

Decisions  of  the  supreme  court  of  the 
United  States  in  point  ibid. 

May  by  the  law  of  nations  be  sold  in 
a  neutral  port  117,  120 

But  the  right  to  sell  must  be  equally 
granted  to  both  parties;  otherwise 
neutrality  is  no  longer  preserved 

120 

Unless  there  is  a  special  treaty  with 
one  of  the  panics  ibid. 

Neutral  governments  generally  find 
it  inconvenient  to  grant  an  indis- 
criminate leave  to  sell  prizes  in 
their  ports,  and  therefore  when  no 
treaty  exists,  refuse  it  to  all  parties 

ibid. 

Edict  of  the  states-general  on  this  sub- 
ject 12.1 

The  author's  opinion  thereon         13V 


INDEX. 


215 


PRIZE  COURTS, 

How  constituted  at  present  in  Europe 

189 

Their  judgments  not  sufficient  to  re- 
lease the  sovereign  from  responsi- 
bility ibid. 

Exemplified  in  the  result  of  the  con- 
troversy between  Great  Britain  and 
Prussia,  respecting  the  Silesia  loan 

ibid. 

And  by  recent  treaties  ibid. 

The  sentences  of  foreign  prize  courts 
ought  not  to  be  conclusive  evidence 
in  favour  of  underwriters  ibid. 

See  Sentences  of  foreign  Prize  Courts, 


PROMISES, 

To  be  kept  in  war  3 

•See  Treaties. 

PROPERTY 

In  ships  and  merchandize,  when 
changed  by  capture  27 

By  the  Roman  law,  only  when  carried 
intra  pr<esidia  27 

Modern  doctrine  of  twenty-four  hours' 
possession  27 

Not  observed  in  Holland  28 

Contrary  to  reason  ibid. 

The  English  press  the  Dutch  to  adopt 
it  ibid. 

Once  not  held  to  be  changed  in  Hol- 
land, in  a  ship  coming  out  of  a 
blockaded  port  after  being  pur- 
chased by  a  neutral,  until  he  had 
carried  it  into  his  own,  or  some 
other  free  port  29 

Edict  of  Louis  XIV.  to  the  same  ef- 
fect 33 

Retorted  by  the  Dutch  34 

Notification  of  the  English  to  the  Han&e 
Towns  to  the  same  effect  33 

A  proportional  rate  of  salvage  adopted 
in  Holland,  in  lieu  thereof  39 

Same  rule  agreed  upon  by  treaty  with 
England  37,  40 

In  immovables  taken  in  war,  is  not 
acquired  bypossession  alone,  unless 
it  be  &Jirm  possession  45 

See  Occupation.  Captures.  Recapture. 


REASON, 

The  source  of  the  law  of  nations  76 
Its  authority  of  the  greatest  weight  1 0 
Is  the  soul  of  the  law  of  nations  1 1 
The  supreme  law  of  nations  96 

Its  dictates  may  safely  be  sought  for 
in  the  rules  of  the  Roman  law     107 


REASON  OF  STATE, 
What  it  is  197 

When  listened  to  by  sovereigns,  there 
is  an  end  to  the  law  of  nations  ibid. 


RECAPTURE, 

Salvage  due  on  4 1 

Such   salvage  estimated  in  England 

and  Holland  according  to  the  time 

that  the  prize  has  been  in  possession 

of  the  enemy  39,  40 

This  rule  is  not  equitable,  42 

Nor   is   that   of   twenty-four  hours* 

possession  ibid. 

Rule  of  the  Consolato  thereon          44 

See  Captures.  Property. 


RECIPROCITY. 

Whatever  right  one  arrogates  to  him- 
self by  the  law  of  war  he  must  also 
allow  to  his  enemy  56 


REPRISALS 

Mean  recaption  or  retaking  182 

Analogous  in  name  and  substance  to 
the  common  law  process  (  f  wither- 
nam  ibid. 

Unknown  to  the  Romans  ^  and  why  ibid. 
Distinction  between  general  and  spe- 
cial reprisals  ibid. 
General  reprisals  are  the  first  step  at 
the  commencement  ot  a  public  war, 
and  are  considered  as  equivalent  to 
a  declaration  of  it                       ibid. 
Speci.il  reprisals  defined          182,  184 
Often  lead  to  war  187 
Not  to  be  granted  without  full  know- 
ledge of  the  cause.  183 


216 


INDEX. 


Nor  unless  there  has  been  an  open 
denial  of  justice  184 

The  sovereign  whose  subjects  are 
complained  of  must  be  applied  to 
in  the  first  instance  185 

Various  treaties  on  this  subject  ibid. 

Opinion  of  the  English  jurists        188 

Precautions  taken  in  France  to  pre- 
ventlet'.ers  of  reprisal  being  granted 
without  sufficient  cause  183 

Punishment  in  case  such  have  been 
obtained  on  false  pretences  184 

The  right  of  granting  letters  of  repri- 
sal belongs  to  the  sovereign  alone, 
and  cannot  be  delegated  187 

Reprisals  may  be  granted  for  a  debt, 
as  well  as  for  an  injury  done  by  ac- 
tual violence  184 

May  be  granted  to  a  resident  alien,  as 
well  as  to  a  subject  ibid. 

May  be  enforced  on  the  delinquent's 
property  in  the  country  of  the  sove- 
reign who  granted  them  188 

But  it  must  be  done  by  legal  means, 
and  not  manuforti  ibid. 

Unless  there  is  danger  in  delay   ibid. 


RETALIATION 

To  be  exercised  only  on  enemies,  and 
not  through  the  injury  of  a  friend 

33 

Instances  to  the  contrary,  and  obser- 
vations thereon  61,  86 


ROMAN  LAW 

Is  denominated  in  Europe  the  com- 
mon law  53,  183 

Is  a  safe  guide  to  discover  the  true 
principles  of  the  law  of  nations  107 

Forbade  the  manufacturing  of  arms 
without  the  permission  of  the  sove- 
reign 98 

Nor  by  that  law  could  any  one  kill 
an  enemy  of  the  Roman  people, 
who  was  not  a  regularly  enlisted 
soldier  139 

The  Romans,  however,  adopted  the 
law  of  -S'o/ow,  permitting  private  Dis- 
sociations for  the  purpose  of  plun- 
der, qucre?  jbid. 


Forbade  navigation  during  the  winter 
months  163 

On  the  subject  of  ex  post  facto  laws 

169 

See  Actions  at  Civil  Law.  Contracts  at 
the  Civil  Law. 


SADDLES 
Are  contraband 


SAFE  CONDUCT 

No  proteciion  out  of  the  place  for 
which  it  is  granted  195 

One  who  resides  in  an  enemy's  coun- 
try, under  a  safe  conduct  from  the 
sovereign,  may  sue  and  be  sued 

ibid. 

But  cannot  be  sued  where  he  is  not 
allowed  to  sue  56 

See  Alien  Enemy. 

SALUTE, 

In  close  seas,  or  within  the  extent  of 
the  jurisdiction  of  the  sovereign  of 
the  coast,  to  be  given  precisely  in 
such  manner  as  that  sovereign  re- 
quires 59 


SALVAGE 

Allowed  by  the  supreme  court  of  the 

United   States   to   the  owners  and 

freighters  of  the  Salovr  ship        158 

Contrary  doctrine  maintained  by  the 
author,  in  the  analogous  case  of  cap- 
tures made  by  non-commibsioned 
privateers  155 

Allowed  in  cases  of  recapture,  and 
how  39 

See  Captures.  Recaptures. 


SANTERNA. 

See  Ancient  writers  on  Maritime  Law. 


SECURITIES  OF  PRIVATEERS 

Not  responsible  beyond  the   amount 

of  their  bonds  or  stipulations      149 


INDEX. 


217 


SENTENCE  OF  CONDEMNA- 
TION 

Converts  the  military  right  to  a  prize 
into  a  civil  right,  and  is  the  legal 
evidence  thereof  1 1  6 

Is  always  in  England,  as  to  neutral 
property  taken  in  war,  on  the  ground 
of  its  having  belonged  to  enemies, 
whatever  may  be  the  real  specific 
cause  or  motive  173 

Palpable  injustice  of  the  British  doc- 
trine, which  makes  a  foreign  sen- 
tence conclusive  evidence  of  non- 
neutrality  in  favour  of  underwriters 

168 

This  doctrine,  however  profitable  it 
may  be  to  belligerents,  is  ruinous 
to  neutral  nations,  and  particularly 
to  America  ibid. 

Is  exploded  in  Pennsylvania  and  Af.-w 
York  ibid. 

See  Concluxiveness  of  the  Sentences  of 
Forein  Prize  Courts. 


SHIP 

Not  to  be  confiscated  for  contraband 
goods  on  board  94 

Unless  shipped  with  the  privity  of  the 
owner  of  the  ship  ibid. 

Various  treaties  on  this  subject 

Confiscated  by  the  law  of  Prance,  if 

.  contraband  amount  to  three  quarters 

of  the  cargo  9'J 

Rule  in  England,  to  release  the  ship 
without  freight,  unless  the  owner  is 
par (ice/is  fraudis  ibid. 

Confiscated  by  the  civil  law  for  having 
unlawful  goods  on  board,  when  ship- 
ped with  the  privity  of  the  master, 
otherwise  no;.  106 

If  vessel  belongs  to  the  master  him- 
self, this  principle  cannot  apply,  be- 
cause he  generally  knows  by  the 
bills  of  lading  what  goods  are  ship- 
ped on  board  107 

And  it  may  be  doubted,  whether  the 
owners  are  not  bound  for  the  fault 
of  the  master  ibid. 

See  Neutral  S/n'fis. 


SPANIARDS 

Pretend  to  blockade  all  the  Portu- 
guese dominions  3 1 

Their  claim  opposed  by  the  Dutch 

ibid. 

T\\t,  English  pretend  in  the  same  man- 
ner to  blockade  the  Spanish  domi- 
nions 92 

See  Blockade.  Dutch,  Englinh. 


STRACCHA. 

Ancient  Writers  on  Maritime  Law. 


SWORD  HILTS  AND  BELTS 
Are  contraband  79 


TOBACCO, 

Once  pretended  by  the  Spaniards  to 
be  contraband,  and  why  80 


TRADE  WITH  BLOCKADED 
OR  BESIEGED  PLACES. 

Unlawful  to  carry  any  thing  to  such 
places,  whether  contraband  or  not  82 

Grotius's  opinion  thereon  ibid. 

Mere  confiscation  not  a  sufficient 
punishment  for  these  who  thus 
trade;  a  corporal  penalty,  at  least, 
if  not  death,  often  inflicted  84 

But  this  severity  applies  only  to  a 
strict  blockade  ibid. 

And  at  this  day  no  punishment  is  in- 
flicted but  confiscation  85 

The  same  in  our  •American  treaties  85 

Blockade  of  the  French  ports  by  the 
Dutch,  and  edict  thereon  .  30,  86 

In  goods  not  contraband,  has  some- 
times been  allowed  92 

Prohibition  of  trade  with  places  not 
actually  blockaded  or  besieged,  too 
unjust  to  be  defended  85 

See  Blockade.  English.  Dutch.  Spa- 
niards. 

|2E 


-•18 


INDEX. 


TRADING  WITH  ENEMIES 
Forbidden  by  the  law  of  war     23,  24 
By  positive  l.tw  in  Hoi/and  ibid. 

By  France,  in  a  declaration  of  war 
against  England  2  1 

Was  formerly  held  lawful  in  £i:tf- 
lund  1 G5 

Is  now  prohibited  there  167 

Sometimes  permitted  in  part,  by 
agreement  between  the  belligerent 
nations  25 

J'"rance  and  England  in   the   present 
war  trade  with  each  other,  and  in- 
terdict thcit  trade  to  neutrals     ibid. 
Illegal  on  general  principles  165 

Prohibited  in  Holland,  even  to  foreign- 
ers 1 7 1 
See  Insurance  of  Enemy's  Property. 


TREATIES 

Made  with  a  view  to  war,  are  to  be 
observed  in  war  3,  51 

Are  from  necessity  to  be  interpreted 
by  the  interested  parties  75 

Of  defensive  alliance,  how  to  be  con- 
strued 7 1 

Lord  Haivkcsbury's  opinion  thereon 
cited  ibid. 

The  party  bound  to  assist  is  to  judge 
of  the  casus  fcederis  72 

One,  or  perhaps  two  treaties  which 
vary  from  general  usage,  do  not 
constitute  the  lajv  of  nations  76 


TRIPOL1TANS.  TUNISIANS. 

See  Africa. 


UNITED  PROVINCES  OF  THE 
NETHERLANDS. 

Whether  they  had  a  right  to  make 
war  and  peace  in  their  separate  ca- 
pacities, and  in  what  cases  181,  189 


VAN  TROMP  (Admiral). 
His  attack  on  the  S/ianish  fleet  in  the 
Downs  6 1 

WAR. 

Various  definitions  of  1 

Begins  from  the  mutual  use  of  force  1 1 
A  public  declaration  not  necessary    7 
Every    thing  lawful   in   war,   except 
perfidy  3 

Orders  in  war  to  be  strictly  obeyed 

193 

Governments  not  bound  to  repair  eve- 
ry loss  that  is  occasioned  by  the  ca- 
lamities of  war  194 
It  h  unjust  to  compel  a  sovereign  to 
make  war  or  peace  196 
See  Declaration  of  War.  Enemies, 


WARLIKE  STORES. 

See  Contraband. 


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